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1.7.2011 Official
Journal
of
the
European
Union L
174/1
I
(Legislative acts)
DIRECTIVES
DIRECTIVE 2011/61/EU OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL
of 8 June 2011
on Alternative Investment Fund Managers and amending Directives 2003/41/EC and 2009/65/EC
and Regulations (EC) No 1060/2009 and (EU) No 1095/2010
(Text with EEA relevance)
THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE
Directive therefore aims at establishing common
EUROPEAN UNION,
requirements governing the authorisation and supervision
of AIFMs in order to provide a coherent approach to the
related risks and their impact on investors and markets in
Having regard to the Treaty on the Functioning of the European
the Union.
Union, and in particular Article 53(1) thereof,
Having regard to the proposal from the European Commission,
(3) Recent
difficulties
in
financial
markets
have
underlined
that many AIFM strategies are vulnerable to some or
several important risks in relation to investors, other
Having regard to the opinion of the European Central Bank (
market participants and markets. In order to provide

1 ),
comprehensive and common arrangements for super
vision, it is necessary to establish a framework capable
of addressing those risks taking into account the diverse
Having regard to the opinion of the European Economic and
range of investment strategies and techniques employed
Social Committee ( 2 ),
by AIFMs. Consequently, this Directive should apply to
AIFMs managing all types of funds that are not covered
by Directive 2009/65/EC of the European Parliament and
Acting in accordance with the ordinary legislative procedure ( 3 ),
of the Council of 13 July 2009 on the coordination of
laws, regulations and administrative provisions relating to
the undertakings for collective investment in transferable
Whereas:
securities (UCITS)
(


4 ), irrespective of the legal or
contractual manner in which the AIFMs are entrusted
with this responsibility. AIFMs should not be entitled
to manage UCITS within the meaning of Directive
(1) Managers
of
alternative
investment
funds
(AIFMs)
are
2009/65/EC on the basis of an authorisation under this
responsible for the management of a significant
Directive.
amount of invested assets in the Union, account for
significant amounts of trading in markets for financial
instruments, and can exercise an important influence
on markets and companies in which they invest.
(4) This
Directive
aims
to
provide
for
an
internal
market
for
AIFMs and a harmonised and stringent regulatory and
supervisory framework for the activities within the
(2) The
impact
of
AIFMs
on
the
markets
in
which
they
Union of all AIFMs, including those which have their
operate is largely beneficial, but recent financial
registered office in a Member State (EU AIFMs) and
difficulties have underlined how the activities of AIFMs
those which have their registered office in a third
may also serve to spread or amplify risks through the
country (non-EU AIFMs). As the practical consequences
financial system. Uncoordinated national responses make
and possible difficulties resulting from a harmonised
the efficient management of those risks difficult. This
regulatory framework and an internal market for non-
EU AIFMs performing management and/or marketing
( 1 ) OJ C 272, 13.11.2009, p. 1.
activities within the Union and EU AIFMs managing
( 2 ) OJ C 18, 19.1.2011, p. 90.
non-EU alternative investment funds (AIFs), are
( 3 ) Position of the European Parliament of 11 November 2010 (not yet
published in the Official Journal) and decision of the Council of
27 May 2011.
( 4 ) OJ L 302, 17.11.2009, p. 32.

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L 174/2
EN
Official Journal of the European Union
1.7.2011
uncertain and difficult to predict due to the lack of
(9) Investment
firms
authorised
under
Directive
2004/39/EC
previous experience in this regard, a review mechanism
of the European Parliament and of the Council of
should be provided for. It is intended that, after a tran
21 April 2004 on markets in financial instruments ( 1 )
sitional period of 2 years, a harmonised passport regime
and credit institutions authorised under Directive
become applicable to non-EU AIFMs performing
2006/48/EC of the European Parliament and of the
management and/or marketing activities within the
Council of 14 June 2006 relating to the taking up and
Union and EU AIFMs managing non-EU AIFs after the
pursuit of the business of credit institutions ( 2 ) should
entry into force of a delegated act by the Commission in
not be required to obtain an authorisation under this
this regard. It is intended that the harmonised regime,
Directive in order to provide investment services such
during a further transitional period of 3 years, co-exist
as individual portfolio management in respect of AIFs.
with the national regimes of the Member States subject
However, investment firms should be able, directly or
to certain minimum harmonised conditions. After that
indirectly, to offer units or shares of an AIF to, or
3-year period of co-existence, it is intended that the
place such units or shares with, investors in the Union
national regimes be brought to an end on the entry
only to the extent that the units or shares can be
into force of a further delegated act by the Commission.
marketed in accordance with this Directive. When trans
posing this Directive into national law, the Member
States should take into account the regulatory purpose
of that requirement and should ensure that investment
firms established in a third country that, pursuant to the
(5) 4
years
after
the
deadline
for
transposition
of
this
relevant national law, can provide investment services in
Directive, the Commission should review the application
respect of AIFs also fall within the scope of that
and the scope of this Directive taking into account its
requirement. The provision of investment services by
objectives and should assess whether or not the Union
those entities in respect of AIFs should never amount
harmonised approach has caused any ongoing major
to a de facto circumvention of this Directive by means
market disruption and whether or not this Directive
of turning the AIFM into a letter-box entity, irrespective
functions effectively in light of the principles of the
of whether the AIFM is established in the Union or in a
internal market and of a level playing field.
third country.
(10) This Directive does not regulate AIFs. AIFs should
(6) The
scope
of
this
Directive
should
be
limited
to
entities
managing AIFs as a regular business – regardless of
therefore be able to continue to be regulated and
whether the AIF is of an open-ended or a closed-ended
supervised at national level. It would be disproportionate
type, whatever the legal form of the AIF, and whether or
to regulate the structure or composition of the portfolios
not the AIF is listed – which raise capital from a number
of AIFs managed by AIFMs at Union level and it would
of investors with a view to investing that capital for the
be difficult to provide for such extensive harmonisation
benefit of those investors in accordance with a defined
due to the very diverse types of AIFs managed by AIFMs.
investment policy.
This Directive therefore does not prevent Member States

from adopting or from continuing to apply national
requirements in respect of AIFs established in their
territory. The fact that a Member State may impose
requirements additional to those applicable in other
Member States on AIFs established in its territory
(7) Investment
undertakings,
such
as
family
office
vehicles
should not prevent the exercise of rights of AIFMs auth
which invest the private wealth of investors without
orised in accordance with this Directive in other Member
raising external capital, should not be considered to be
States to market to professional investors in the Union
AIFs in accordance with this Directive.
certain AIFs established outside the Member State
imposing additional requirements and which are
therefore not subject to and do not need to comply
with those additional requirements.
(8) The
entities
not
considered
to
be
AIFMs
pursuant
to
this
Directive fall outside its scope. As a consequence, this
Directive should not apply to holding companies as
defined herein. However, managers of private equity
(11) Several
provisions
of
this
Directive
require
AIFMs
to
funds or AIFMs managing AIFs whose shares are
ensure compliance with requirements for which, in
admitted to trading on a regulated market should not
some fund structures, AIFMs are not responsible. An
be excluded from its scope. Further, this Directive
example of such fund structures is where the responsi
should not apply to the management of pension funds;
bility for appointing the depositary rests with the AIF or
employee participation or savings schemes; supranational
another entity acting on behalf of the AIF. In such cases,
institutions; national central banks; national, regional and
the AIFM has no ultimate control over whether a
local governments and bodies or institutions which
depositary is in fact appointed unless the AIF is internally
manage funds supporting social security and pension
systems; securitisation special purpose entities; or
( 1 ) OJ L 145, 30.4.2004, p. 1.
insurance contracts and joint ventures.
( 2 ) OJ L 177, 30.6.2006, p. 1.

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EN
1.7.2011 Official
Journal
of
the
European
Union L
174/3
managed. Since this Directive does not regulate AIFs, it
manage EU AIFs, and/or market AIFs to professional
cannot require an AIF to appoint a depositary. In cases of
investors, in their territory only, subject to national
failure of an AIFM to ensure compliance with the
law, in so far as certain minimum conditions pursuant
applicable requirements of an AIF or another entity on
to this Directive are met.
its behalf, the competent authorities should require the
AIFM to take the necessary steps to remedy the situation.
If, despite such steps, the non-compliance persists, and in
so far as it concerns an EU AIFM or an authorised non-
EU AIFM managing an EU AIF, the AIFM should resign
(16) This
Directive
should
not
apply
to
AIFMs
in
so
far
as
as manager of that AIF. If the AIFM fails to resign, the
they manage AIFs whose only investors are the AIFMs
competent authorities of its home Member State should
themselves or their parent undertakings, their subsidiaries
require such resignation and the marketing in the Union
or other subsidiaries of their parent undertaking and
of the AIF concerned should no longer be permitted. The
where those investors are not themselves AIFs.
same prohibition should apply to authorised non-EU
AIFMs marketing non-EU AIFs in the Union.
(17) This
Directive
further
provides
for
a
lighter
regime
for
AIFMs where the cumulative AIFs under management fall
(12) Unless
specifically
provided
for
otherwise,
where
this
below a threshold of EUR 100 million and for AIFMs
Directive refers to the interests of the investors of an
that manage only unleveraged AIFs that do not grant
AIF the investors’ interests in their specific capacity as
investors redemption rights during a period of 5 years
investors of the AIF, and not their individual interests, are
where the cumulative AIFs under management fall below
envisaged.
a threshold of EUR 500 million. Although the activities
of the AIFMs concerned are unlikely to have individually
significant consequences for financial stability, it is
possible that aggregation causes their activities to give
rise to systemic risks. Consequently, those AIFMs
(13) Subject
to
the
exceptions
and
restrictions
provided
for,
this Directive should be applicable to all EU AIFMs
should not be subject to full authorisation but to regis
managing EU AIFs or non-EU AIFs, irrespective of
tration in their home Member States and should, inter
whether or not they are marketed in the Union, to
alia, provide their competent authorities with relevant
non-EU AIFMs managing EU AIFs, irrespective of
information regarding the main instruments in which
whether or not they are marketed in the Union, and to
they are trading and on the principal exposures and
non-EU AIFMs marketing EU AIFs or non-EU AIFs in the
most important concentrations of the AIFs they
Union.
manage. However, in order to be able to benefit from

the rights granted under this Directive, those smaller
AIFMs should be allowed to be treated as AIFMs
subject to the opt-in procedure provided for by this
Directive. That exemption should not limit the ability
(14) This Directive lays down requirements regarding the
of Member States to impose stricter requirements on
manner in which AIFMs should manage AIFs under
those AIFMs that have not opted in.
their responsibility. For non-EU AIFMs this is limited to
the management of EU AIFs and other AIFs the units or
shares of which are also marketed to professional
investors in the Union.
(18) No EU AIFM should be able to manage and/or market
EU AIFs to professional investors in the Union unless it
has been authorised in accordance with this Directive. An
AIFM authorised in accordance with this Directive should
(15) The
authorisation
of
EU
AIFMs
in
accordance
with
this
meet the conditions for authorisation established in this
Directive covers the management of EU AIFs established
Directive at all times.
in the home Member State of the AIFM. Subject to
further notification requirements, this also includes the
marketing to professional investors within the Union of
EU AIFs managed by the EU AIFM and the management
of EU AIFs established in Member States other than the
(19) As
soon
as
this
is
permitted
under
this
Directive,
a
non-
home Member State of the AIFM. This Directive also
EU AIFM intending to manage EU AIFs and/or market
provides for the conditions subject to which authorised
AIFs in the Union with a passport or an EU AIFM
EU AIFMs are entitled to market non-EU AIFs to profes
intending to market non-EU AIFs in the Union with a
sional investors in the Union and the conditions subject
passport should also be authorised in accordance with
to which a non-EU AIFM can obtain an authorisation to
this Directive. At least during a transitional period, a
manage EU AIFs and/or to market AIFs to professional
Member State should also be able to allow a non-EU
investors in the Union with a passport. During a period
AIFM to market AIFs in that Member State and to
that is intended to be transitional, Member States should
authorise an EU AIFM to market non-EU AIFs in that
also be able to allow EU AIFMs to market non-EU AIFs
Member State in so far as the minimum conditions set
in their territory only and/or to allow non-EU AIFMs to
out in this Directive are met.

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L 174/4
EN
Official Journal of the European Union
1.7.2011
(20) Depending
on
their
legal
form,
it
should
be
possible
for
(23) It is necessary to provide for the application of minimum
AIFs to be either externally or internally managed. AIFs
capital requirements to ensure the continuity and the
should be deemed internally managed when the
regularity of the management of AIFs provided by an
management functions are performed by the governing
AIFM and to cover the potential exposure of AIFMs to
body or any other internal resource of the AIF. Where
professional liability in respect of all their activities,
the legal form of the AIF permits internal management
including the management of AIFs under a delegated
and where the AIF’s governing body chooses not to
mandate. AIFMs should be free to choose whether to
appoint an external AIFM, the AIF is also AIFM and
cover potential risks of professional liability by additional
should therefore comply with all requirements for
own funds or by an appropriate professional indemnity
AIFMs under this Directive and be authorised as such.
insurance.
An AIFM which is an internally managed AIF should
however not be authorised as the external manager of
other AIFs. An AIF should be deemed externally managed
when an external legal person has been appointed as
manager by or on behalf of the AIF, which through
(24) In
order
to
address
the
potentially
detrimental
effect
of
such appointment is responsible for managing the AIF.
poorly designed remuneration structures on the sound
Where an external AIFM has been appointed to manage a
management of risk and control of risk-taking
particular AIF, that AIFM should not be deemed to be
behaviour by individuals, there should be an express
providing the investment service of portfolio
obligation for AIFMs to establish and maintain, for
management as defined in point (9) of Article 4(1) of
those categories of staff whose professional activities
Directive 2004/39/EC, but, rather, collective portfolio
have a material impact on the risk profiles of AIFs they
management in accordance with this Directive.
manage, remuneration policies and practices that are
consistent with sound and effective risk management.
Those categories of staff should at least include senior
management, risk takers, control functions, and any
employees receiving total remuneration that takes them
into the same remuneration bracket as senior
(21) Management
of
AIFs
should
mean
providing
at
least
management and risk takers.
investment management services. The single AIFM to
be appointed pursuant to this Directive should never
be authorised to provide portfolio management without
also providing risk management or vice versa. Subject to
the conditions set out in this Directive, an authorised
(25) The
principles
governing
remuneration
policies
should
AIFM should not, however, be prevented from also
recognise that AIFMs are able to apply those policies in
engaging in the activities of administration and
different ways according to their size and the size of the
marketing of an AIF or from engaging in activities
AIFs they manage, their internal organisation and the
related to the assets of the AIF. An external AIFM
nature, the scope and the complexity of their activities.
should not be prevented from also providing the
service of management of portfolios of investments
with mandates given by investors on a discretionary,
client-by-client basis, including portfolios owned by
pension funds and institutions for occupational
(26) The
principles
regarding
sound
remuneration
policies
set
retirement provision which are covered by Directive
out in the Commission Recommendation 2009/384/EC
2003/41/EC of the European Parliament and of the
of 30 April 2009 on remuneration policies in the
Council of 3 June 2003 on the activities and supervision
financial services sector ( 2 ) are consistent with and
of institutions for occupational retirement provision ( 1 ),
complement the principles of this Directive.
or from providing the non-core services of investment
advice, safe-keeping and administration in relation to
units of collective investment undertakings and
reception and transmission of orders. Pursuant to auth
orisation under Directive 2009/65/EC, an external AIFM
should be allowed to manage UCITS.
(27) In
order
to
promote
supervisory
convergences
in
the

assessment of remuneration policies and practices, the
European Supervisory Authority (European Securities
and Markets Authority), established by Regulation (EU)
No 1095/2010 of the European Parliament and of the
Council ( 3 ) (ESMA) should ensure the existence of
guidelines on sound remuneration policies in the AIFM
(22) It
is
necessary
to
ensure
that
AIFMs
operate
subject
to
sector. The European Supervisory Authority (European
robust governance controls. AIFMs should be managed
Banking Authority) established by Regulation (EU)
and organised so as to minimise conflicts of interest. The
No 1093/2010 of the European Parliament and of the
organisational requirements established under this
Council ( 4 ) should assist it in the elaboration of such
Directive should be without prejudice to systems and
guidelines.
controls established by national law for the registration
of persons working within or for an AIFM.
( 2 ) OJ L 120, 15.5.2009, p. 22.
( 3 ) OJ L 331, 15.12.2010, p. 84.
( 1 ) OJ L 235, 23.9.2003, p. 10.
( 4 ) OJ L 331, 15.12.2010, p. 12.

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EN
1.7.2011 Official
Journal
of
the
European
Union L
174/5
(28) The provisions on remuneration should be without
(33) The provisions of this Directive relating to the
prejudice to the full exercise of fundamental rights guar
appointment and the tasks of a depositary should
anteed by the Treaties, in particular Article 153(5) TFEU,
apply to all AIFs managed by an AIFM subject to this
general principles of national contract and labour law,
Directive and therefore to all AIF business models. They
applicable legislation regarding shareholders’ rights and
should, however, be adapted to the specificities of
involvement and the general responsibilities of the
different business models. For some business models
administrative and supervisory bodies of the institution
certain depositary tasks are more relevant than for
concerned, as well as the right, where applicable, of social
others, depending on the type of assets the AIFs are
partners to conclude and enforce collective agreements,
investing in and the tasks related to those assets.
in accordance with national laws and traditions.
(29) Reliable
and
objective
asset
valuation
is
crucial
for
the
(34) For
AIFs
that
have
no
redemption
rights
exercisable
protection of investor interests. AIFMs employ different
during the period of 5 years from the date of the
methodologies and systems for valuing assets, depending
initial investments and that, in accordance with their
on the assets and markets in which they predominantly
core investment policy, generally do not invest in
invest. It is appropriate to recognise those differences but,
assets that must be held in custody in accordance with
nevertheless, to require in all cases AIFMs to implement
this Directive or generally invest in issuers or non-listed
valuation procedures resulting in the proper valuation of
companies in order potentially to acquire control over
assets of AIFs. The process for valuation of assets and
such companies in accordance with this Directive, such
calculation of the net asset value should be functionally
as private equity, venture capital funds and real estate
independent from the portfolio management and the
funds, Member States should be able to allow a notary,
remuneration policy of the AIFM and other measures
a lawyer, a registrar or another entity to be appointed to
should ensure that conflicts of interest are prevented
carry out depositary functions. In such cases the
and that undue influence on the employees is prevented.
depositary functions should be part of professional or
Subject to certain conditions, AIFMs should be able to
business activities in respect of which the appointed
appoint an external valuer to perform the valuation
entity is subject to mandatory professional registration
function.
recognised by law or to legal or regulatory provisions
or rules of professional conduct and can provide
sufficient financial and professional guarantees to
enable it to perform effectively the relevant depositary
functions and meet the commitments inherent in those
(30) Subject
to
strict
limitations
and
requirements,
including
functions. This takes account of current practice for
the existence of objective reasons, an AIFM should be
certain types of closed-ended funds. However, for all
able to delegate the carrying out of some of its
other AIFs, the depositary should be a credit institution,
functions on its behalf in accordance with this
an investment firm or another entity permitted under
Directive so as to increase the efficiency of the conduct
Directive 2009/65/EC, given the importance of the
of its business. Subject to the same conditions, sub-
custody function. For non-EU AIFs only, it should also
delegation should also be allowed. AIFMs should,
be possible for the depositary to be a credit institution or
however, remain responsible for the proper performance
any other entity of the same nature as the entities
of the delegated functions and compliance with this
referred to in this recital as long as it is subject to
Directive at all times.
effective prudential regulation and supervision which
have the same effect as Union law and are effectively
enforced.
(31) The
strict
limitations
and
requirements
set
out
on
the
delegation of tasks by AIFMs should apply to the
delegation of management functions set out in Annex
I. Delegation of supporting tasks, such as administrative
(35) The
depositary
should
have
its
registered
office
or
a
or technical functions performed by the AIFM as a part
branch in the same country as the AIF. It should be
of its management tasks, should not be subject to the
possible for a non-EU AIF to have a depositary estab
specific limitations and requirements set out in this
lished in the relevant third country only if certain addi
Directive.
tional conditions are met. On the basis of the criteria set
out in delegated acts, the Commission should be
empowered to adopt implementing measures, stating
that prudential regulation and supervision of a third
country have the same effect as Union law and are
(32) Recent developments underline the crucial need to
effectively enforced. Further, the mediation procedure
separate asset safe-keeping and management functions,
set out in Article 19 of Regulation (EU) No
and to segregate investor assets from those of the
1095/2010 should apply in the event that competent
manager. Although AIFMs manage AIFs with different
authorities disagree on the correct application of the
business models and arrangements for, inter alia, asset
other additional conditions. Alternatively, for non-EU
safe-keeping, it is essential that a depositary separate
AIFs, the depositary should also be able to be established
from the AIFM is appointed to exercise depositary
in the home Member State or in the Member State of
functions with respect to AIFs.
reference of the AIFM managing the AIF.

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L 174/6
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1.7.2011
(36) The
Commission
is
invited
to
examine
the
possibilities
of
settlement finality in payment and securities settlement
putting forward an appropriate horizontal legislative
systems ( 2 ) or entrusting the provision of similar services
proposal that clarifies the responsibilities and liabilities
to third-country securities settlement systems should not
of a depositary and governs the right of a depositary
be considered to be a delegation of custody functions.
in one Member State to provide its services in another
Member State.
(42) The
strict
limitations
and
requirements
to
which
the
delegation of tasks by the depositary is subject should
(37) The
depositary
should
be
responsible
for
the
proper
apply to the delegation of its specific functions as a
monitoring of the AIF’s cash flows, and, in particular,
depositary, namely the monitoring of the cash flow,
for ensuring that investor money and cash belonging
the safe-keeping of assets and the oversight functions.
to the AIF, or to the AIFM acting on behalf of the AIF,
Delegation of supporting tasks that are linked to its
is booked correctly on accounts opened in the name of
depositary tasks, such as administrative or technical
the AIF or in the name of the AIFM acting on behalf of
functions performed by the depositary as a part of its
the AIF or in the name of the depositary acting on behalf
depositary tasks, is not subject to the specific limitations
of the AIF for the safe-keeping of the assets of the AIF,
and requirements set out in this Directive.
including the holding in custody of financial instruments
that can be registered in a financial instruments account
opened in the depositary’s books and all financial
(43) This
Directive
also
takes
account
of
the
fact
that
many
instruments that can be physically delivered to the
AIFs, and in particular hedge funds, currently make use
depositary, and for the verification of ownership of all
of a prime broker. This Directive ensures that AIFs may
other assets by the AIF or the AIFM on behalf of the AIF.
continue to use the function of prime brokers. However,
When ensuring investor money is booked in cash
unless it has functionally and hierarchically separated the
accounts, the depositary should take into account the
performance of its depositary functions from its tasks as
principles set out in Article 16 of Commission
prime broker and the potential conflicts of interest are
Directive 2006/73/EC of 10 August 2006 implementing
properly identified, managed and disclosed to the
Directive 2004/39/EC of the European Parliament and of
investors of the AIF, no prime broker should be
the Council as regards organisational requirements and
appointed as a depositary, since prime brokers act as
operating conditions for investment firms and defined
counterparties to AIFs and therefore cannot at the
terms for the purposes of that Directive ( 1 ).
same time act in the best interest of the AIF as is
required of a depositary. Depositaries should be able to
delegate custody tasks to one or more prime brokers or
other third parties. In addition to the delegated custody
(38) A
depositary
should
act
honestly,
fairly,
professionally,
tasks prime brokers should be allowed to provide prime
independently and in the interest of the AIF or of the
brokerage services to the AIF. Those prime brokerage
investors of the AIF.
services should not form part of the delegation
arrangement.
(39) It
should
be
possible
for
a
depositary
to
delegate
the
safe-
keeping of assets to a third party which, in its turn,
(44) The
depositary
should
be
liable
for
the
losses
suffered
by
should be able to delegate that function. However,
the AIFM, the AIF and the investors. This Directive distin
delegation and sub-delegation should be objectively
guishes between the loss of financial instruments held in
justified and subject to strict requirements in relation to
custody, and any other losses. In the case of a loss other
the suitability of the third party entrusted with the
than of financial instruments held in custody, the
delegated function, and in relation to the due skill, care
depositary should be liable in the case of intent or
and diligence that the depositary should employ to select,
negligence. Where the depositary holds assets in
appoint and review that third party.
custody and those assets are lost, the depositary should
be liable, unless it can prove that the loss is the result of
an external event beyond its reasonable control, the
consequences of which would have been unavoidable
despite all reasonable efforts to the contrary. In this
(40) A
third
party
to
whom
the
safe-keeping
of
assets
is
context, a depositary should not, for example, be able
delegated should be able to maintain a common
to rely on internal situations such as a fraudulent act by
segregated account for multiple AIFs, a so-called
an employee to discharge itself of liability.
‘omnibus account’.


(45) Where
the
depositary
delegates
custody
tasks
and
the
(41) Entrusting the custody of assets to the operator of a
financial instruments held in custody by a third party
securities settlement system as designated for the
are lost, the depositary should be liable. However,
purposes of Directive 98/26/EC of the European
provided that the depositary is expressly allowed to
Parliament and of the Council of 19 May 1998 on
discharge itself of liability subject to a contractual
( 1 ) OJ L 241, 2.9.2006, p. 26.
( 2 ) OJ L 166, 11.6.1998, p. 45.

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transfer of such liability to that third party, pursuant to a
and respond to those risks has not been collected in a
written contract between the depositary and the AIF or
consistent way throughout the Union, and shared across
the AIFM acting on behalf of the AIF, in which such a
Member States so as to identify potential sources of risk
discharge is objectively justified, and that the third party
to the stability of financial markets in the Union. To
can be held liable for the loss based on a contract
remedy that situation, special requirements should
between the depositary and the third party, the
apply to AIFMs which employ leverage on a substantial
depositary should be able to discharge itself of liability
basis at the level of the AIF. Such AIFMs should be
if it can prove that it has exercised due skill, care and
required to disclose information regarding the overall
diligence and that the specific requirements for delegation
level of leverage employed, the leverage arising from
are met. By imposing the requirement of a contractual
borrowing of cash or securities and the leverage arising
transfer of liability to the third party, this Directive
from positions held in derivatives, the reuse of assets and
intends to attach external effects to such contract,
the main sources of leverage in their AIFs. Information
making the third party directly liable to the AIF, or to
gathered by competent authorities should be shared with
the investors of the AIF, for the loss of the financial
other authorities in the Union, with ESMA and with the
instruments held in custody.
European Systemic Risk Board (ESRB) established by
Regulation (EU) No 1092/2010 of the European
Parliament and of the Council of 24 November 2010
on European Union macro-prudential oversight of the
(46) Further,
where
the
law
of
a
third
country
requires
that
financial system and establishing a European Systemic
certain financial instruments be held in custody by a
Risk Board ( 1 ) so as to facilitate a collective analysis of
local entity and there are no local entities that satisfy
the impact of the leverage of AIFs managed by AIFMs on
all depositary delegation requirements, the depositary
the financial system in the Union, as well as a common
should be able to discharge itself of liability provided
response. If one or more AIFs managed by an AIFM
that: the rules or instruments of incorporation of the
could potentially constitute an important source of
AIF concerned expressly allow for such a discharge; the
counterparty risk to a credit institution or other
investors have been duly informed of that discharge and
systemically relevant institutions in other Member
the circumstances justifying the discharge prior to their
States, such information should also be shared with the
investment; the AIF or the AIFM on behalf of the AIF
relevant authorities.
instructed the depositary to delegate the custody of such
financial instruments to a local entity; there is a written
contract between the depositary and the AIF or the AIFM
acting on behalf of the AIF, which expressly allows such
(50) In
order
to
ensure
a
proper
assessment
of
the
risks
a discharge; and there is a written contract between the
induced by the use of leverage by an AIFM with
depositary and the third party which expressly transfers
respect to the AIFs it manages, the AIFM should demon
the liability of the depositary to that third party and
strate that the leverage limits for each AIF it manages are
makes it possible for the AIF, or the AIFM acting on
reasonable and that it complies with those limits at all
behalf of the AIF, to make a claim against the third
times. Where the stability and integrity of the financial
party in respect of the loss of financial instruments or
system may be threatened, the competent authorities of
for the depositary to make such a claim on their behalf.
the home Member State of the AIFM should be able to
impose limits to the level of leverage that an AIFM can
employ in AIFs under its management. ESMA and the
ESRB should be informed about any actions taken in this
(47) This
Directive
should
be
without
prejudice
to
any
future
respect.
legislative measures with respect to the depositary in
Directive 2009/65/EC, because UCITS and AIFs are
different both in the investment strategies they follow
and in the type of investors for which they are intended.
(51) It
is
also
considered
necessary
to
allow
ESMA,
after
taking into account the advice of the ESRB, to
determine that the leverage used by an AIFM or by a
group of AIFMs poses a substantial risk to the stability
(48) An
AIFM
should,
for
each
of
the
EU
AIFs
it
manages
and
and the integrity of the financial system and to issue
for each of the AIFs it markets in the Union, make
advice to competent authorities specifying the remedial
available an annual report for each financial year no
measures to be taken.
later than 6 months following the end of the financial
year in accordance with this Directive. That 6-month
period should be without prejudice to the right of the
Member States to impose a shorter period.
(52) It is necessary to ensure that the competent authorities of
the home Member State of the AIFM, the companies over
which AIFs managed by an AIFM exercise control and
(49) Given
that
it
is
possible
for
an
AIFM
to
employ
leverage
the employees of such companies receive certain
and, under certain conditions, to contribute to the build
information necessary for those companies to assess
up of systemic risk or disorderly markets, special
how that control will impact their situation.
requirements should be imposed on AIFMs employing
leverage. The information needed to detect, monitor
( 1 ) OJ L 331, 15.12.2010, p. 1.

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L 174/8
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Official Journal of the European Union
1.7.2011
(53) Where
AIFMs
manage
AIFs
which
exercise
control
over
Member State with information on the financing of the
an issuer whose shares are admitted to trading on a
acquisition. That obligation to provide information on
regulated market, information should generally be
financing should also apply when an AIFM manages
disclosed in accordance with Directive 2004/25/EC of
AIFs which acquire control over an issuer of shares
the European Parliament and of the Council of
admitted to trading on a regulated market.
21 April 2004 on takeover bids ( 1 ) and 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 market (
(57) Where
an AIFM manages
one or more AIFs
which

2 ). Specific requirements should apply
to AIFMs managing AIFs which exercise control over a
acquire control over a non-listed company or an issuer,
non-listed company. In order to ensure transparency
the AIFM should, for a period of 24 months following
regarding the controlled company, enhanced trans
the acquisition of control of the company by the AIFs,
parency, disclosure and reporting requirements should
first, not be allowed to facilitate, support or instruct any
apply. Further, the annual reports of the relevant AIF
distribution, capital reduction, share redemption and/or
should be supplemented with regard to the controlled
acquisition of own shares by the company in accordance
company or such additional information should be
with this Directive; second, in so far as the AIFM is
included in the annual report of the controlled
authorised to vote on behalf of the AIFs at the
company. Such information should be made available
meetings of governing bodies of the company, not vote
to the employees’ representatives or, where there are
in favour of a distribution, capital reduction, share
none, the employees themselves, and to the investors
redemption and/or acquisition of own shares by the
of the relevant AIF.
company in accordance with this Directive; and third,
in any event, use its best efforts to prevent distributions,
capital reductions, share redemptions and/or the
acquisition of own shares by the company in accordance
with this Directive. When transposing this Directive into
(54) Specific
information
requirements
towards
employees
of
national law, the Member States should take into account
certain companies apply in cases where AIFs acquire
the regulatory purpose of the provisions of Section 2 of
control over such companies in accordance with this
Chapter V of this Directive and take due account in this
Directive. However, in most cases the AIFM has no
context of the need for a level playing field between EU
control over the AIF, unless it is an internally managed
AIFs and non-EU AIFs when acquiring control in
AIF. Furthermore, there is, in accordance with the general
companies established in the Union.
principles of company law, no direct relationship
between the shareholders and the employees’ represen
tatives or, where there are none, the employees them
selves. For those reasons, no direct information
requirements towards the employees’ representatives or,
where there are none, the employees themselves, can be
(58) The
notification
and
disclosure
requirements
and
the
imposed pursuant to this Directive on a shareholder or
specific safeguards against asset stripping in the case of
its manager, namely the AIF and the AIFM. As regards
control over a non-listed company or an issuer should be
the information requirements towards such employees’
subject to a general exception for control over small and
representatives or, where there are none, the employees
medium-sized enterprises and special purpose vehicles
themselves, this Directive should provide for an obli
with the purpose of purchasing, holding or adminis
gation on the AIFM concerned to use its best efforts to
trating real estate. Further, those requirements do not
ensure that the board of directors of the company
aim at making public proprietary information which
concerned discloses the relevant information to the
would put the AIFM at a disadvantage vis-à-vis
employees’ representatives or, where there are none, the
potential competitors such as sovereign wealth funds or
employees themselves.
competitors that may want to put the target company
out of business by using the information to their
advantage. The obligations to notify and disclose
information should therefore apply subject to the
conditions and restrictions relating to confidential
(55) The Commission is invited to examine the need and the
information set out in Directive 2002/14/EC of the
possibilities to amend the information and disclosure
European Parliament and of the Council of 11 March
requirements applicable in cases of control over non-
2002 establishing a general framework for informing
listed companies or issuers set out in this Directive on
and consulting employees in the European
a general level, regardless of the type of investor.
Community ( 3 ) and without prejudice to Directives
2004/25/EC and 2004/109/EC. This means that
Member States should provide that within the limits
and conditions laid down by national law the employees’
(56) Where
an AIFM
manages
one or more AIFs
which
representatives, and anyone assisting them, are not auth
acquire control over a non-listed company, the AIFM
orised to reveal to employees and to third parties any
should provide the competent authorities of its home
information affecting the legitimate interests of the
company that has expressly been provided to them in
( 1 ) OJ L 142, 30.4.2004, p. 12.
( 2 ) OJ L 390, 31.12.2004, p. 38.
( 3 ) OJ L 80, 23.3.2002, p. 29.

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confidence. Member States should, however, be able to
2 years after the deadline for transposition of this
authorise the employees’ representatives and anyone
Directive, authorised EU AIFMs intending to market
assisting them to pass on confidential information to
non-EU AIFs to professional investors in their home
employees and to third parties bound by an obligation
Member State and/or in other Member States should be
of confidentiality. Member States should provide that the
allowed to do so with a passport in so far as they
relevant AIFMs do not request the communication of
comply with this Directive. That right should be subject
information by the board of directors to the employees’
to notification procedures and conditions in relation to
representatives or, where there are none, the employees
the third country of the non-EU AIF.
themselves, when the nature of that information is such
that, according to objective criteria, it would seriously
harm the functioning of the company concerned or
would be prejudicial to it. The notification and disclosure
requirements and the specific safeguards against asset
stripping should also apply without prejudice to any
stricter rules adopted by Member States.
(63) During
a
transitional
period,
which
will,
in
principle,
taking into account ESMA’s advice, be brought to an
end by means of a delegated act 3 years after the estab
lishment of the passport for non-EU AIFMs, EU AIFMs
intending to market non-EU AIFs in certain Member
(59) This
Directive
also
lays
down
the
conditions
subject
to
States, but without a passport, should also be permitted
which EU AIFMs may market the units or shares of EU
to do so by the relevant Member States, but only in so
AIFs to professional investors in the Union. Such
far as they comply with this Directive with the exception
marketing by EU AIFMs should be allowed only in so
of the depositary requirements. Such EU AIFMs should,
far as the AIFM complies with this Directive and the
however, ensure that one or more entities are appointed
marketing occurs with a passport, without prejudice to
to carry out the duties of the depositary. In addition,
the marketing of AIFs by AIFMs falling below the
appropriate cooperation arrangements for the purpose
thresholds provided for in this Directive. It should be
of systemic risk oversight and in line with international
possible for Member States to allow marketing of AIFs
standards should be in place between the competent
by AIFMs falling below those thresholds subject to
authorities of the home Member State of the AIFM and
national provisions.
the supervisory authorities of the third country where the
non-EU AIF is established in order to ensure an efficient
exchange of information that allows the competent
authorities of the home Member State of the AIFM to
carry out their duties in accordance with this Directive.
(60) It
should
be
possible
for
units
or
shares
of
an
AIF
to
be
The cooperation arrangements should not be used as a
listed on a regulated market in the Union, or offered or
barrier to impede non-EU AIFs from being marketed in a
placed by third parties acting on behalf of the AIFM, in a
Member State. Further, the third country where the non-
particular Member State only if the AIFM which manages
EU AIF is established should not be listed as a Non-
the AIF is itself permitted to market the units or shares
Cooperative Country and Territory by the Financial
of the AIF in that Member State. In addition, other
Action Task Force on anti-money laundering and
national and Union law, such as Directive 2003/71/EC
terrorist financing (FATF).
of the European Parliament and of the Council of
4 November 2003 on the prospectus to be published
when securities are offered to the public or admitted to
trading ( 1 ) and Directive 2004/39/EC, may also regulate
the distribution of AIFs to investors in the Union.
(64) After the entry into force of a delegated act adopted by
the Commission in that regard, which will, in principle,
taking into account advice given by ESMA, occur 2 years
(61) Many
EU
AIFMs
currently
manage
non-EU
AIFs.
It
is
after the deadline for transposition of this Directive, a
appropriate to allow authorised EU AIFMs to manage
basic principle of this Directive should be that a non-
non-EU AIFs without marketing them in the Union
EU AIFM is to benefit from the rights conferred under
without imposing on them the strict depositary
this Directive, such as to market units or shares of AIFs
requirements and the requirements relating to the
throughout the Union with a passport, subject to its
annual report provided for in this Directive, as those
compliance with this Directive. This should ensure a
requirements have been included for the protection of
level playing field between EU and non-EU AIFMs. This
Union investors.
Directive therefore provides for an authorisation
applicable to non-EU AIFMs which will become
applicable after the entry into force of the delegated act
adopted by the Commission in this regard. To ensure
that such compliance is enforced, the competent
(62) After the entry into force of a delegated act adopted by
authorities of a Member State should enforce compliance
the Commission in this regard, which will, in principle,
with this Directive. For such non-EU AIFMs the
taking into account the advice provided by ESMA, occur
competent supervisory authorities should be the
competent authorities of the Member State of reference,
( 1 ) OJ L 345, 31.12.2003, p. 64.
as defined in this Directive.

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(65) Therefore, where a non-EU AIFM intends to manage EU
only and without such a passport should also be
AIFs and/or market AIFs in the Union with a passport, it
permitted to do so by the relevant Member States, but
should also be required to comply with this Directive, so
only in so far as certain minimum conditions are met.
that it is subject to the same obligations as EU AIFMs. In
Those non-EU AIFMs should be subject at least to rules
very exceptional circumstances, if and to the extent
similar to those applicable to EU AIFMs managing EU
compliance with a provision of this Directive is incom
AIFs with respect to the disclosure to investors. In order
patible with compliance with the law to which the non-
to facilitate the monitoring of systemic risk those non-EU
EU AIFM or the non-EU AIF marketed in the Union is
AIFMs should also be subject to reporting obligations vis-
subject, it should be possible for the non-EU AIFM to be
à-vis the competent authorities of the Member State in
exempted from compliance with the relevant provision
which AIFs are marketed. Such AIFMs should therefore
of this Directive if it can demonstrate that: it is
comply with the transparency requirements laid down in
impossible to combine compliance with a provision of
this Directive and the obligations on AIFMs managing
this Directive with compliance with a mandatory
AIFs which acquire control of non-listed companies
provision in the law to which the non-EU AIFM or the
and issuers. Further, appropriate cooperation
non- EU AIF marketed in the Union is subject; the law to
arrangements for the purpose of systemic risk oversight
which the non-EU AIFM or the non-EU AIF is subject
and in line with international standards should be in
provides for an equivalent rule having the same regu
place between the competent authorities of the Member
latory purpose and offering the same level of protection
States where the AIFs are marketed, if applicable, the
to the investors of the relevant AIF; and the non-EU
competent authorities of the EU AIFs concerned and
AIFM or the non-EU AIF complies with that equivalent
the supervisory authorities of the third country where
rule.
the non-EU AIFM is established and, if applicable, the
supervisory authorities of the third country where the
non-EU AIF is established in order to ensure an
efficient exchange of information that allows competent
(66) Further,
a
non-EU
AIFM
intending
to
manage
EU
AIFs
authorities of the relevant Member States to carry out
and/or market AIFs in the Union with a passport should
their duties in accordance with this Directive. The coop
comply with a specific authorisation procedure and
eration arrangements should not be used as a barrier to
certain specific requirements concerning the third
impede third country funds from being marketed in a
country of the non-EU AIFM and, as appropriate, the
Member State. Finally, the third country where the non-
third country of the non-EU AIF should be satisfied.
EU AIFM or the non-EU AIF is established should not be
listed as a Non-Cooperative Country and Territory by
FATF.
(67) ESMA
should
provide
advice
on
the
determination
of
the
Member State of reference, and, where relevant, the
exemption as regards compatibility with an equivalent
rule. Specific requirements for the exchange of
(70) This
Directive
should
not
affect
the
current
situation,
information between the competent authorities of the
whereby a professional investor established in the
Member State of reference and the competent authorities
Union may invest in AIFs on its own initiative, irre
of the host Member States of the AIFM should apply.
spective of where the AIFM and/or the AIF is established.
Further, the mediation procedure provided for in
Article 19 of Regulation (EU) No 1095/2010 should
apply in case of disagreement between competent
authorities of Member States on the determination of
(71) Member
States
should
be
able
to
allow
the
marketing
of
the Member State of reference, the application of the
all or certain types of AIFs managed by AIFMs to retail
exemption in case of incompatibility between compliance
investors in their territory. If a Member State allows the
with this Directive and compliance with equivalent rules
marketing of certain types of AIF, the Member State
of a third country, and the assessment regarding the
should make an assessment on a case-by-case basis to
fulfilment of the specific requirements concerning the
determine whether a specific AIF should be considered as
third country of the non-EU AIFM and, as appropriate,
a type of AIF which may be marketed to retail investors
the third country of the non-EU AIF.
in its territory. Without prejudice to the application of
other instruments of Union law, Member States should in
such cases be able to impose stricter requirements on
(68) ESMA
should,
on
an
annual
basis,
conduct
a
peer
review
AIFs and AIFMs as a precondition for marketing to
analysis of the supervisory activities of the competent
retail investors than is the case for AIFs marketed to
authorities in relation to the authorisation and the super
professional investors in their territory, irrespective of
vision of non-EU AIFMs, to further enhance consistency
whether such AIFs are marketed on a domestic or
in supervisory outcomes, in accordance with Article 30
cross-border basis. Where a Member State allows the
of Regulation (EU) No 1095/2010.
marketing of AIFs to retail investors in its territory, this
possibility should be available regardless of the Member
State where the AIFM managing the AIFs is established,
and Member States should not impose stricter or addi
(69) During
a
transitional
period
which
will,
in
principle,
tional requirements on EU AIFs established in another
taking into account ESMA’s advice, be brought to an
Member State and marketed on a cross-border basis
end by means of a delegated act 3 years after the estab
than on AIFs marketed domestically. In addition,
lishment of the passport for non-EU AIFMs, a non-EU
AIFMs, investment firms authorised under Directive
AIFM intending to market AIFs in certain Member States
2004/39/EC and credit institutions authorised under

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Directive 2006/48/EC which provide investment services
transmission of information by competent authorities
to retail clients should take into account any additional
should be in accordance with the rules on the transfer
requirements when assessing whether a certain AIF is
of personal data as laid down in Directive 95/46/EC of
suitable or appropriate for an individual retail client or
the European Parliament and of the Council of
whether it is a complex or non-complex financial
24 October 1995 on the protection of individuals with
instrument.
regard to the processing of personal data and on the free
movement of such data ( 1 ). Any exchange or trans
mission of information by ESMA should be in
accordance with the rules on the transfer of personal
data as laid down in Regulation (EC) No 45/2001 of
(72) It
is
necessary
to
clarify
the
powers
and
duties
of
the
competent authorities responsible for implementing this
the European Parliament and of the Council of
Directive, and to strengthen the mechanisms necessary to
18 December 2000 on the protection of individuals
ensure effective cross-border supervisory cooperation.
with regard to the processing of personal data by the
Under certain circumstances it should be possible for
Community institutions and bodies and on the free
the competent authorities of the host Member States of
movement of such data ( 2 ), which should be fully
an AIFM to take direct action to supervise compliance
applicable to the processing of personal data for the
with provisions for which they are responsible. For other
purposes of this Directive.
provisions the competent authorities of the host Member
States should under certain circumstances be allowed to
request action from the competent authorities of the
home Member State and to intervene if no such action
(77) In
order
to
ensure
uniform
conditions
for
the
implemen
is undertaken.
tation of this Directive, implementing powers should be
conferred on the Commission. Those powers should be
exercised in accordance with Regulation (EU)
No 182/2011 of the European Parliament and of the
(73) This
Directive
provides
for
a
general
coordinating
role
for
Council of 16 February 2011 laying down the rules
ESMA, and the possibility of binding mediation
and general principles concerning mechanisms for
procedures, chaired by ESMA, to resolve disputes
control by Member States of the Commission’s exercise
between competent authorities.
of implementing powers ( 3 ).
(74) ESMA
should
develop
draft
regulatory
technical
standards
(78) The Commission should be empowered to adopt
on the contents of the cooperation arrangements that
delegated acts in accordance with Article 290 TFEU
must be concluded by the home Member State or by
where expressly provided for in this Directive. In
the Member State of reference of the AIFM and the
particular, the Commission should be empowered to
relevant third-country supervisory authorities and on
adopt delegated acts to specify the methods of leverage
the procedures for the exchange of information. The
as defined in this Directive, including any financial and/or
draft regulatory technical standards should ensure that
legal structures involving third parties controlled by the
pursuant to those cooperation arrangements all
relevant AIF where those structures are specifically set up
necessary information is to be provided to enable the
to directly or indirectly create leverage at the level of the
competent authorities of both the home and the host
AIF. In particular for private equity and venture capital
Member States to exercise their supervisory and investi
funds this means that leverage that exists at the level of a
gatory powers under this Directive. ESMA should also
portfolio company is not intended to be included when
have a facilitating role in the negotiation and conclusion
referring to such financial or legal structures.
of the cooperation arrangements. For example, ESMA
should be able to use its facilitating role by providing
for a standard format for such cooperation arrangements.
(79) Delegated
acts
should
also
be
adopted
to
specify
how
to
calculate the thresholds for the lighter regime and how to
(75) Member States should lay down rules on penalties
treat AIFMs whose assets under management, including
applicable to infringements of this Directive and ensure
any assets acquired through use of leverage, in one and
that they are implemented. The penalties should be
the same calendar year occasionally exceed and/or fall
effective, proportionate and dissuasive.
below the relevant threshold; to specify the obligations
to register for the AIFMs falling below the thresholds and
to provide information in order to effectively monitor
systemic risk and the obligation for such AIFMs to
notify the relevant competent authorities where they no
(76) This Directive respects the fundamental rights and
longer fulfil the conditions for application of the lighter
observes the principles recognised, in particular, in the
regime.
TFEU and in the Charter of Fundamental Rights of the
European Union (Charter), in particular the right to the
( 1 ) OJ L 281, 23.11.1995, p. 31.
protection of personal data recognised in Article 16
( 2 ) OJ L 8, 12.1.2001, p. 1.
TFEU and in Article 8 of the Charter. Any exchange or
( 3 ) OJ L 55, 28.2.2011, p. 13.

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(80) Delegated
acts
should
also
be
adopted
to
clarify
the
administrative and accounting procedures, control and
methods of leverage, including any financial and/or
safeguard arrangements for electronic data processing
legal structures involving third parties controlled by the
and adequate internal control mechanisms; to specify
relevant AIF and how leverage is to be calculated; to
the procedures for the proper valuation of the assets
specify the risks the additional own funds or the profes
and the calculation of the net asset value per unit or
sional indemnity insurance must cover, the conditions
share of the AIF, the professional guarantees the
for determining the appropriateness of additional own
external valuer must be able to provide, and the
funds or the coverage of the professional indemnity
frequency for valuation appropriate for open-ended AIFs.
insurance, and the manner of determining ongoing
adjustments of the additional own funds or of the
coverage of the professional indemnity insurance.
Delegated acts should also be adopted to specify the
criteria to be used by competent authorities to assess
whether AIFMs comply with their obligations as
regards their conduct of business, their obligation to
act in the best interests of the AIFs or the investors of
(83) Delegated
acts
should
also
be
adopted
to
specify
the
the AIFs they manage and the integrity of the market; to
conditions subject to which the delegation of AIFM
have and employ effectively the resources and procedures
functions should be approved and the conditions
that are necessary for the proper performance of their
subject to which the AIFM has delegated its functions
business activities; to take all reasonable steps to avoid
to the extent that it becomes a letter-box entity and
conflicts of interest and, where such conflicts cannot be
can no longer be considered to be the manager of the
avoided, to identify, manage and monitor, and where
AIF; as regards depositaries, to specify the criteria for
applicable, disclose, those conflicts of interest in order
assessing that the prudential regulation and supervision
to prevent them from adversely affecting the interests
of third countries where the depositaries are established
of the AIFs and their investors and to ensure that the
have the same effect as Union law and are effectively
AIFs they manage are fairly treated; to comply with all
enforced, the particulars that need to be included in
regulatory requirements applicable to the conduct of
the standard agreement, the conditions for performing
their business activities so as to promote the best
the depositary functions, including the type of financial
interests of the AIFs or the investors of the AIFs they
instruments that should be included in the scope of the
manage and the integrity of the market; and to treat all
depositary’s custody duties, the conditions subject to
AIF investors fairly.
which the depositary may exercise its custody duties
over financial instruments registered with a central
depositary and the conditions subject to which the
depositary should safekeep the financial instruments
issued in a nominative form and registered with an
issuer or a registrar, the due diligence duties of
(81) Delegated
acts
should
also
be
adopted
to
specify
the
type
of conflicts of interest AIFMs have to identify, as well as
depositaries, the segregation obligation, the conditions
the reasonable steps AIFMs are expected to take in terms
subject to and circumstances in which financial
of structures and organisational and administrative
instruments held in custody should be considered as
procedures in order to identify, prevent, manage,
lost, what is to be understood by external events
monitor and disclose conflicts of interest. Delegated
beyond reasonable control, the consequences of which
acts should also be adopted to specify the risk
would have been unavoidable despite all reasonable
management functions to be employed; the appropriate
efforts to the contrary, and the conditions subject to
frequency for review of the risk management system;
and circumstances in which there is an objective reason
how the risk management function should be func
to contract a discharge of liability. Delegated acts should
tionally and hierarchically separated from the operating
also be adopted to specify the content and format of the
units, including the portfolio management function; the
annual report that AIFMs have to make available for each
specific safeguards against conflicts of interest; and the
AIF they manage and to specify the disclosure obligations
risk management requirements to be employed by
of AIFMs to investors and reporting requirements to
AIFMs. Delegated acts should also be adopted to
competent authorities as well as their frequency.
specify the liquidity management systems and procedures
that AIFMs should employ and the alignment of the
investment strategy, liquidity profile and redemption
policy. Delegated acts should also be adopted to specify
the requirements that the originators, the sponsors or the
original lenders of securitisation instruments have to
meet in order for an AIFM to be allowed to invest in
such instruments issued after 1 January 2011.
(84) Delegated
acts
should
also
be
adopted
to
specify
when
leverage is considered to be employed on a substantial
basis and the principles competent authorities should use
when considering imposing limits to the level of leverage
that an AIFM can apply. Delegated acts should also be
adopted to specify the cooperation arrangements in
(82) Delegated
acts
should
also
be
adopted
to
specify
the
relation to non-EU AIFMs and/or non-EU AIFs in order
requirements that AIFMs have to comply with when
to design a common framework to facilitate the estab
investing in such securitisation instruments; to specify
lishment of those cooperation arrangements with third

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countries. Delegated acts should also be adopted to
(89) At
the
April
2009
summit
in
London,
G20
Leaders
specify the content of exchange of information
agreed that hedge funds or their managers should be
regarding AIFMs between competent authorities and the
registered and should be required to disclose appropriate
provision of certain information to ESMA.
information on an ongoing basis to supervisors or
regulators. They should be subject to oversight to
ensure that they have adequate risk management. In
June 2010, G20 Leaders in Toronto reaffirmed their
commitment and also committed to accelerate the imple
(85) Depending
on
the
advice
of
ESMA
in
this
regard
and
the
mentation of strong measures to improve transparency
criteria set out in this Directive, a delegated act should
and regulatory oversight of hedge funds in an inter
also be adopted in order to extend the passport to EU
nationally consistent and non-discriminatory way. In
AIFMs marketing non-EU AIFs in the Union and to non-
order to support the G20 objectives, the International
EU AIFMs managing and/or marketing AIFs in the Union,
Organization of Securities Commissions issued high
and another delegated act should be adopted to terminate
level principles of hedge fund oversight in June 2009
the application of national private placement regimes in
to guide the development of internationally consistent
this regard.
regulation in this area. On 16 September 2010 the
European Council agreed on the need for Europe to
promote its interest and values more assertively and in
a spirit of reciprocity and mutual benefit in the context
of the Union’s external relations and to take steps to,
inter alia, secure greater market access for European
(86) The
European
Parliament
and
the
Council
should
have
3
business and deepen regulatory cooperation with major
months from the date of notification to object to a
trade partners. The Commission will endeavour to ensure
delegated act. At the initiative of the European Parliament
that these commitments are implemented in a similar
or the Council, it should be possible to prolong that
way by the Union’s international partners.
period by 3 months in regard to significant areas of
concern. It should also be possible for the European
Parliament and the Council to inform the other insti
tutions of their intention not to raise objections. Such
early approval of delegated acts is particularly important
where deadlines need to be met, for example to allow
Member States to transpose delegated acts within the
(90) 3 years after the entry into force of the delegated act
transposition period laid down in this Directive, where
pursuant to which the passport is to apply to all
relevant.
AIFMs, ESMA should issue an opinion on the functioning

of the passport then in force and on the functioning of
national private placement regimes. It should also issue
advice on the termination of those national regimes. The
Commission should adopt a delegated act within 3
months of receipt of the opinion and advice from
(87) In the Declaration on Article 290 of the Treaty on the
ESMA, taking into account the criteria listed in, and
Functioning of the European Union, annexed to the Final
the objectives of, this Directive, inter alia, relating to
Act of the Intergovernmental Conference which adopted
the internal market, investor protection and the
the Treaty of Lisbon, the Conference took note of the
effective monitoring of systemic risk, specifying the
Commission’s intention to consult experts appointed by
date when the national regimes referred to in this
the Member States in the preparation of draft delegated
Directive should be brought to an end in all Member
acts in the financial services area, in accordance with its
States.
established practice.
(88) 2 years
after the deadline for transposition of this
(91) 4 years
after the deadline for transposition of this
Directive, ESMA should issue an opinion on the func
Directive, the Commission should, on the basis of
tioning of the passport then in force and on the func
public consultation and in the light of the discussions
tioning of national private placement regimes. It should
with competent authorities, commence a review of the
also issue advice on the extension of the passport to EU
application and the scope of this Directive. That review
AIFMs marketing non-EU AIFs in the Union and to non-
should analyse the experience acquired in applying this
EU AIFMs managing and/or marketing AIFs in the Union.
Directive, its impact on investors, AIFs or AIFMs, in the
The Commission should adopt a delegated act within 3
Union and in third countries, and the extent to which the
months after having received that opinion and advice
objectives of this Directive have been achieved, if
from ESMA and taking into account the criteria listed
necessary proposing appropriate amendments. That
in, and the objectives of, this Directive, inter alia,
review should include a general survey of the functioning
regarding the internal market, investor protection and
of the rules laid down in this Directive and the
the effective monitoring of systemic risk, specifying the
experience acquired in applying them. The Commission
date when the rules relating to the extension of the
should in its review examine the functions of ESMA and
passport provided for in this Directive should become
the Union competent authorities in ensuring effective
applicable in all Member States.
supervision of all AIFMs operating in the Union markets

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L 174/14
EN
Official Journal of the European Union
1.7.2011
in the context of this Directive, including, inter alia – in
HAVE ADOPTED THIS DIRECTIVE:
accordance with Regulation (EU) No 1095/2010 –
entrusting ESMA with further supervisory responsibilities
CHAPTER I
in the field of authorisation and supervision of non-EU
AIFMs. In this context the Commission should assess the
GENERAL PROVISIONS
costs and benefits of entrusting ESMA with such tasks.
Article 1
Subject matter
This Directive lays down the rules for the authorisation,
ongoing operation and transparency of the managers of alter
(92) This
Directive
aims
at
establishing
a
framework
capable
native investment funds (AIFMs) which manage and/or market
of addressing the potential risks which might arise from
alternative investment funds (AIFs) in the Union.
the activities of AIFMs and ensuring the effective moni
toring of those risks by the competent authorities within
the Union. It is necessary to provide for a stringent
Article 2
regulatory and supervisory framework which leaves no
Scope
gaps in financial regulation. In that regard reference is
made to the existing due diligence requirements
1.
Subject to paragraph 3 of this Article and to Article 3, this
applicable to professional investors pursuant to the
Directive shall apply to:
relevant regulation applicable to such investors. The
Commission is invited to review the relevant legislation
(a) EU AIFMs which manage one or more AIFs irrespective of
with respect to professional investors in order to assess
whether such AIFs are EU AIFs or non-EU AIFs;
the need for tighter requirements regarding the due
diligence process to be undertaken by Union professional
(b) non-EU AIFMs which manage one or more EU AIFs; and
investors investing on their own initiative in non-EU
financial products, such as non-EU AIFs.
(c) non-EU AIFMs which market one or more AIFs in the
Union irrespective of whether such AIFs are EU AIFs or
non-EU AIFs.
2. For
the
purposes
of
paragraph
1,
the
following
shall
be
of
(93) At the end of its review, the Commission should present
a report to the European Parliament and the Council
no significance:
including, if appropriate, proposed amendments taking
into account the objectives of this Directive and
(a) whether the AIF belongs to the open-ended or closed-ended
potential impacts on investors, AIFs or AIFMs, in the
type;
Union and in third countries.
(b) whether the AIF is constituted under the law of contract,
under trust law, under statute, or has any other legal form;
(c) the legal structure of the AIFM.
(94) Since the objective of this Directive, namely to ensure a
high level of investor protection by laying down a
3. This
Directive
shall
not
apply
to
the
following
entities:
common framework for the authorisation and super
vision of AIFMs, cannot be sufficiently achieved by the
Member States, as evidenced by the deficiencies of
(a) holding companies;
existing nationally based regulation and oversight of
those actors, and can therefore be better achieved at
(b) institutions for occupational retirement provision which are
Union level, the Union may adopt measures, in
covered by Directive 2003/41/EC, including, where
accordance with the principle of subsidiarity as set out
applicable, the authorised entities responsible for
in Article 5 of the Treaty on European Union. In
managing such institutions and acting on their behalf
accordance with the principle of proportionality, as set
referred to in Article 2(1) of that Directive or the investment
out in that Article, this Directive does not go beyond
managers appointed pursuant to Article 19(1) of that
what is necessary in order to achieve that objective.
Directive, in so far as they do not manage AIFs;
(c) supranational institutions, such as the European Central
Bank, the European Investment Bank, the European
Investment Fund, the European Development Finance Insti
(95) Directives
2003/41/EC
and
2009/65/EC,
Regulation
(EC)
tutions and bilateral development banks, the World Bank,
No 1060/2009 of the European Parliament and of the
the International Monetary Fund, and other supranational
Council of 16 September 2009 on credit rating
institutions and similar international organisations, in the
agencies ( 1 ) and Regulation (EU) No 1095/2010 should
event that such institutions or organisations manage AIFs
therefore be amended accordingly,
and in so far as those AIFs act in the public interest;
( 1 ) OJ L 302, 17.11.2009, p. 1.
(d) national central banks;

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(e) national, regional and local governments and bodies or
(c) provide information on the investment strategies of the AIFs
other institutions which manage funds supporting social
that they manage to the competent authorities of their
security and pension systems;
home Member State at the time of registration;
(f) employee participation schemes or employee savings
(d) regularly provide the competent authorities of their home
schemes;
Member State with information on the main instruments in
which they are trading and on the principal exposures and
most important concentrations of the AIFs that they
(g) securitisation special purpose entities.
manage in order to enable the competent authorities to
monitor systemic risk effectively; and
4. Member
States
shall
take
the
necessary
steps
to
ensure
that AIFMs referred to in paragraph 1 comply with this
(e) notify the competent authorities of their home Member
Directive at all times.
State in the event that they no longer meet the conditions
referred to in paragraph 2.
Article 3
This paragraph and paragraph 2 shall apply without prejudice
Exemptions
to any stricter rules adopted by Member States with respect to
1. This Directive shall not apply to AIFMs in so far as they
AIFMs referred to in paragraph 2.
manage one or more AIFs whose only investors are the AIFM or
the parent undertakings or the subsidiaries of the AIFM or other
subsidiaries of those parent undertakings, provided that none of
Member States shall take the necessary steps to ensure that
those investors is itself an AIF.
where the conditions set out in paragraph 2 are no longer
met, the AIFM concerned applies for authorisation within 30
calendar days in accordance with the relevant procedures laid
2. Without
prejudice
to
the
application
of
Article
46,
only down in this Directive.
paragraphs 3 and 4 of this Article shall apply to the following
AIFMs:
4. AIFMs
referred
to
in
paragraph
2
shall
not
benefit
from
any of the rights granted under this Directive unless they choose
(a) AIFMs which either directly or indirectly, through a
to opt in under this Directive. Where AIFMs opt in, this
company with which the AIFM is linked by common
Directive shall become applicable in its entirety.
management or control, or by a substantive direct or
indirect holding, manage portfolios of AIFs whose assets
under management, including any assets acquired through
5. The
Commission
shall
adopt
implementing
acts
with
a
use of leverage, in total do not exceed a threshold of
view to specifying the procedures for AIFMs which choose to
EUR 100 million; or
opt in under this Directive in accordance with paragraph 4.
Those implementing acts shall be adopted in accordance with
the examination procedure referred to in Article 59(2).
(b) AIFMs 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
6. The
Commission
shall
adopt,
by
means
of
delegated
acts
indirect holding, manage portfolios of AIFs whose assets
in accordance with Article 56 and subject to the conditions of
under management in total do not exceed a threshold of
Articles 57 and 58, measures specifying:
EUR 500 million when the portfolios of AIFs consist of
AIFs that are unleveraged and have no redemption rights
exercisable during a period of 5 years following the date of
(a) how the thresholds referred to in paragraph 2 are to be
initial investment in each AIF.
calculated and the treatment of AIFMs which manage AIFs
whose assets under management, including any assets
acquired through the use of leverage, occasionally exceed
3. Member States shall ensure that AIFMs referred to in
and/or fall below the relevant threshold in the same
paragraph 2 at least:
calendar year;
(a) are subject to registration with the competent authorities of
(b) the obligation to register and to provide information in
their home Member State;
order to allow effective monitoring of systemic risk as set
out in paragraph 3; and
(b) identify themselves and the AIFs that they manage to the
competent authorities of their home Member State at the
(c) the obligation to notify competent authorities as set out in
time of registration;
paragraph 3.

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L 174/16
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1.7.2011
Article 4
A situation in which two or more natural or legal persons
are permanently linked to the same person by a control
Definitions
relationship shall also be regarded as constituting a ‘close
1. For
the
purpose
of
this
Directive,
the
following
definitions
link’ between such persons;
shall apply:
(f) ‘competent
authorities’
means
the
national
authorities
of
(a) ‘AIFs’
means
collective
investment
undertakings,
including
Member States which are empowered by law or regulation
investment compartments thereof, which:
to supervise AIFMs;
(i) raise capital from a number of investors, with a view
(g) ‘competent
authorities’
in
relation
to
a
depositary
means:
to investing it in accordance with a defined investment
policy for the benefit of those investors; and
(i) if the depositary is a credit institution authorised
(ii) do not require authorisation pursuant to Article 5 of
under Directive 2006/48/EC, the competent
Directive 2009/65/EC;
authorities as defined in point (4) of Article 4 thereof;
(b) ‘AIFMs’
means
legal
persons
whose
regular
business
is
(ii) if the depositary is an investment firm authorised
managing one or more AIFs;
under Directive 2004/39/EC, the competent
authorities as defined in point (22) of Article 4(1)
thereof;
(c) ‘branch’
when
relating
to
an
AIFM
means
a
place
of
business which is a part of an AIFM, which has no legal
personality and which provides the services for which the
(iii) if the depositary falls within a category of institution
AIFM has been authorised; all the places of business estab
referred to in point (c) of the first subparagraph of
lished in the same Member State by an AIFM with its
Article 21(3) of this Directive, the national authorities
registered office in another Member State or in a third
of its home Member State which are empowered by
country shall be regarded as a single branch;
law or regulation to supervise such categories of insti
tution;
(d) ‘carried
interest’
means
a
share
in
the
profits
of
the
AIF
accrued to the AIFM as compensation for the management
(iv) if the depositary is an entity referred to in the third
of the AIF and excluding any share in the profits of the
subparagraph of Article 21(3) of this Directive, the
AIF accrued to the AIFM as a return on any investment by
national authorities of the Member State in which
the AIFM into the AIF;
that entity has its registered office and which are
empowered by law or regulation to supervise such
entity or the official body competent to register or
(e) ‘close
links’
means
a
situation
in
which
two
or
more
supervise such entity pursuant to the rules of profes
natural or legal persons are linked by:
sional conduct applicable thereto;
(i) participation, namely ownership, directly or by way of
(v) if the depositary is appointed as depositary for a non-
control, of 20 % or more of the voting rights or
EU AIF in accordance with point (b) of Article 21(5)
capital of an undertaking;
of this Directive and does not fall within the scope of
points (i) to (iv) of this point, the relevant national
authorities of the third country where the depositary
has its registered office;
(ii) control, namely the relationship between a parent
undertaking and a subsidiary, as referred to in
Article 1 of the Seventh Council Directive 83/349/EEC
of 13 June 1983 on consolidated accounts ( 1 ), or a
(h) ‘competent authorities of the EU AIF’ means the national
similar relationship between a natural or legal person
authorities of a Member State which are empowered by
and an undertaking; for the purposes of this point a
law or regulation to supervise AIFs;
subsidiary undertaking of a subsidiary undertaking
shall also be considered to be a subsidiary of the
parent undertaking of those subsidiaries.
(i) ‘control’ means control as defined in Article 1 of Directive
( 1 ) OJ L 193, 18.7.1983, p. 1.
83/349/EEC;

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(j) ‘established’
means:
(i) operating on its own account and whose shares are
admitted to trading on a regulated market in the
Union; or
(i) for AIFMs, ‘having its registered office in’;
(ii) not established for the main purpose of generating
(ii) for AIFs, ‘being authorised or registered in’, or, if the
returns for its investors by means of divestment of
AIF is not authorised or registered, ‘having its
its subsidiaries or associated companies, as evidenced
registered office in’;
in its annual report or other official documents;
(iii) for depositaries, ‘having its registered office or branch
(p) ‘home
Member
State
of
the
AIF’
means:
in’;
(iv) for legal representatives that are legal persons, ‘having
(i) the Member State in which the AIF is authorised or
its registered office or branch in’;
registered under applicable national law, or in case of
multiple authorisations or registrations, the Member
State in which the AIF has been authorised or
registered for the first time; or
(v) for legal representatives that are natural persons,
‘domiciled in’;
(ii) if the AIF is neither authorised nor registered in a
(k) ‘EU
AIF’
means:
Member State, the Member State in which the AIF
has its registered office and/or head office;
(i) an AIF which is authorised or registered in a Member
State under the applicable national law; or
(q) ‘home
Member
State
of
the
AIFM’
means
the
Member
State in which the AIFM has its registered office; for
non-EU AIFMs, all references to ‘home Member State of
(ii) an AIF which is not authorised or registered in a
the AIFM’ in this Directive shall be read as the ‘Member
Member State, but has its registered office and/or
State of reference’, as provided for in Chapter VII;
head office in a Member State;
(r) ‘host Member State of the AIFM’ means any of the
(l) ‘EU
AIFM’
means
an
AIFM
which
has
its
registered
office
following:
in a Member State;
(i) a Member State, other than the home Member State,
(m) ‘feeder AIF’ means an AIF which:
in which an EU AIFM manages EU AIFs;
(i) invests at least 85 % of its assets in units or shares of
(ii) a Member State, other than the home Member State,
another AIF (the ‘master AIF’);
in which an EU AIFM markets units or shares of an
EU AIF;
(ii) invests at least 85 % of its assets in more than one
master AIFs where those master AIFs have identical
(iii) a Member State, other than the home Member State,
investment strategies; or
in which an EU AIFM markets units or shares of a
non-EU AIF;
(iii) has otherwise an exposure of at least 85 % of its
assets to such a master AIF;
(iv) a Member State, other than the Member State of
reference, in which a non-EU AIFM manages EU AIFs;
(n) ‘financial
instrument’
means
an
instrument
as
specified
in
Section C of Annex I to Directive 2004/39/EC;
(v) a Member State, other than the Member State of
reference, in which a non-EU AIFM markets units or
(o) ‘holding
company’
means
a
company
with
shareholdings
shares of an EU AIF; or
in one or more other companies, the commercial purpose
of which is to carry out a business strategy or strategies
through its subsidiaries, associated companies or partici
(vi) a Member State, other than the Member State of
pations in order to contribute to their long-term value,
reference, in which a non-EU AIFM markets units or
and which is either a company:
shares of a non-EU AIF;

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(s) ‘initial
capital’
means
funds
as
referred
to
in
points
(a)
and
(ad) ‘own funds’ means own funds as referred to in Articles 56
(b) of the first paragraph of Article 57 of Directive
to 67 of Directive 2006/48/EC;
2006/48/EC;
(ae) ‘parent undertaking’ means a parent undertaking within
(t) ‘issuer’
means
an
issuer
within
the
meaning
of
point
(d)
of
the meaning of Articles 1 and 2 of Directive 83/349/EEC;
Article 2(1) of Directive 2004/109/EC where that issuer
has its registered office in the Union, and where its shares
are admitted to trading on a regulated market within the
meaning of point (14) of Article 4(1) of Directive
2004/39/EC;
(af) ‘prime broker’ means a credit institution, a regulated
investment firm or another entity subject to prudential
regulation and ongoing supervision, offering services to
professional investors primarily to finance or execute
(u) ‘legal
representative’
means
a
natural
person
domiciled
in
transactions in financial instruments as counterparty and
the Union or a legal person with its registered office in the
which may also provide other services such as clearing
Union, and which, expressly designated by a non-EU
and settlement of trades, custodial services, securities
AIFM, acts on behalf of such non-EU AIFM vis-à-vis the
lending, customised technology and operational support
authorities, clients, bodies and counterparties to the non-
facilities;
EU AIFM in the Union with regard to the non-EU AIFM’s
obligations under this Directive;
(ag) ‘professional investor’ means an investor which is
considered to be a professional client or may, on
(v) ‘leverage’
means
any
method
by
which
the
AIFM
increases
request, be treated as a professional client within the
the exposure of an AIF it manages whether through
meaning of Annex II to Directive 2004/39/EC;
borrowing of cash or securities, or leverage embedded in
derivative positions or by any other means;
(ah) ‘qualifying holding’ means a direct or indirect holding in
(w) ‘managing AIFs’ means performing at least investment
an AIFM which represents 10 % or more of the capital or
management functions referred to in point 1(a) or (b) of
of the voting rights, in accordance with Articles 9 and 10
Annex I for one or more AIFs;
of Directive 2004/109/EC, taking into account the
conditions regarding aggregation of the holding laid
down in Article 12(4) and (5) thereof, or which makes
it possible to exercise a significant influence over the
(x) ‘marketing’ means a direct or indirect offering or
management of the AIFM in which that holding subsists;
placement at the initiative of the AIFM or on behalf of
the AIFM of units or shares of an AIF it manages to or
with investors domiciled or with a registered office in the
Union;
(ai) ‘employees’ representatives’ means employees’ represen
tatives as defined in point (e) of Article 2 of Directive
2002/14/EC;
(y) ‘master AIF’ means an AIF in which another AIF invests or
has an exposure in accordance with point (m);
(aj) ‘retail investor’ means an investor who is not a profes
sional investor;
(z) ‘Member
State
of reference’ means
the
Member
State
determined in accordance with Article 37(4);
(ak) ‘subsidiary’ means a subsidiary undertaking as defined in
Articles 1 and 2 of Directive 83/349/EEC;
(aa) ‘non-EU AIF’ means an AIF which is not an EU AIF;
(ab) ‘non-EU AIFM’ means an AIFM which is not an EU AIFM;
(al) ‘supervisory
authorities’
in
relation
to
non-EU
AIFs
means
the national authorities of a third country which are
empowered by law or regulation to supervise AIFs;
(ac) ‘non-listed company’ means a company which has its
registered office in the Union and the shares of which
are not admitted to trading on a regulated market
(am) ‘supervisory authorities’ in relation to non-EU AIFMs
within the meaning of point (14) of Article 4(1) of
means the national authorities of a third country which
Directive 2004/39/EC;
are empowered by law or regulation to supervise AIFMs;

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EN
1.7.2011 Official
Journal
of
the
European
Union L
174/19
(an) ‘securitisation special purpose entities’ means entities
(b) where the legal form of the AIF permits an internal
whose sole purpose is to carry on a securitisation or
management and where the AIF’s governing body chooses
securitisations within the meaning of Article 1(2) of Regu
not to appoint an external AIFM, the AIF itself, which shall
lation (EC) No 24/2009 of the European Central Bank of
then be authorised as AIFM.
19 December 2008 concerning statistics on the assets and
liabilities of financial vehicle corporations engaged in secu
ritisation transactions ( 1 ) and other activities which are
2. In
cases
where
an
external
AIFM
is
unable
to
ensure
appropriate to accomplish that purpose;
compliance with requirements of this Directive for which an
AIF or another entity on its behalf is responsible, it shall
immediately inform the competent authorities of its home
(ao) ‘UCITS’ means an undertaking for collective investment in
Member State and, if applicable, the competent authorities of
transferable securities authorised in accordance with
the EU AIF concerned. The competent authorities of the home
Article 5 of Directive 2009/65/EC.
Member State of the AIFM shall require the AIFM to take the
necessary steps to remedy the situation.
2. For the purposes of point (ad) of paragraph 1 of this
Article, Articles 13 to 16 of Directive 2006/49/EC of the
3. If,
notwithstanding
the
steps
referred
to
in
paragraph
2
European Parliament and of the Council of 14 June 2006 on
being taken, the non-compliance persists, and in so far as it
the capital adequacy of investment firms and credit insti
concerns an EU AIFM or an EU AIF, the competent authorities
tutions ( 2 ) shall apply mutatis mutandis.
of the home Member State of the AIFM shall require that it
resign as AIFM of that AIF. In that case the AIF shall no longer
be marketed in the Union. If it concerns a non-EU AIFM
3. The
Commission
shall
adopt,
by
means
of
delegated
acts managing a non-EU AIF, the AIF shall no longer be marketed
in accordance with Article 56 and subject to the conditions of
in the Union. The competent authorities of the home Member
Articles 57 and 58, measures specifying:
State of the AIFM shall immediately inform the competent
authorities of the host Member States of the AIFM.
(a) the methods of leverage, as defined in point (v) of paragraph
1, including any financial and/or legal structures involving
CHAPTER II
third parties controlled by the relevant AIF; and
AUTHORISATION OF AIFMs
Article 6
(b) how leverage is to be calculated.
Conditions for taking up activities as AIFM
1. Member States shall ensure that no AIFMs manage AIFs
4. The
European
Supervisory
Authority
(European
Securities unless they are authorised in accordance with this Directive.
and Markets Authority) (ESMA) shall develop draft regulatory
technical standards to determine types of AIFMs, where relevant
in the application of this Directive, and to ensure uniform
AIFMs authorised in accordance with this Directive shall meet
conditions of application of this Directive.
the conditions for authorisation established in this Directive at
all times.
Power is delegated to the Commission to adopt the regulatory
technical standards referred to in the first subparagraph in
2. Member
States
shall
require
that
no
external
AIFM
engage
accordance with Articles 10 to 14 of Regulation (EU)
in activities other than those referred to in Annex I to this
No 1095/2010.
Directive and the additional management of UCITS subject to
authorisation under Directive 2009/65/EC.
Article 5
3. Member
States
shall
require
that
no
internally
managed
Determination of the AIFM
AIF shall engage in activities other than the internal
1. Member
States
shall
ensure
that
each
AIF
managed
within management of that AIF in accordance with Annex I.
the scope of this Directive shall have a single AIFM, which shall
be responsible for ensuring compliance with this Directive. The
AIFM shall be either:
4. By way of derogation from paragraph 2, Member States
may authorise an external AIFM to provide the following
services:
(a) an external manager, which is the legal person appointed by
the AIF or on behalf of the AIF and which through this
appointment is responsible for managing the AIF (external
(a) management of portfolios of investments, including those
AIFM); or
owned by pension funds and institutions for occupational
retirement provision in accordance with Article 19(1) of
( 1 ) OJ L 15, 20.1.2009, p. 1.
Directive 2003/41/EC, in accordance with mandates given
( 2 ) OJ L 177, 30.6.2006, p. 201.
by investors on a discretionary, client-by-client basis;

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L 174/20
EN
Official Journal of the European Union
1.7.2011
(b) non-core services comprising:
(a) information on the persons effectively conducting the
business of the AIFM;
(i) investment advice;
(b) information on the identities of the AIFM’s shareholders or
members, whether direct or indirect, natural or legal
(ii) safe-keeping and administration in relation to shares or
persons, that have qualifying holdings and on the
units of collective investment undertakings;
amounts of those holdings;
(iii) reception and transmission of orders in relation to
financial instruments.
(c) a programme of activity setting out the organisational
structure of the AIFM, including information on how the
AIFM intends to comply with its obligations under Chapters
5. AIFMs
shall
not
be
authorised
under
this
Directive
to
II, III, IV, and, where applicable, Chapters V, VI, VII and VIII;
provide:
(d) information on the remuneration policies and practices
(a) only the services referred to in paragraph 4;
pursuant to Article 13;
(b) non-core services referred to in point (b) of paragraph 4
(e) information on arrangements made for the delegation and
without also being authorised to provide the services
sub-delegation to third parties of functions as referred to in
referred to in point (a) of paragraph 4;
Article 20.
(c) only the activities referred to in point 2 of Annex I; or
3. Member
States
shall
require
that
an
AIFM
applying
for
authorisation further provide the following information on the
AIFs it intends to manage to the competent authorities of its
(d) the services referred to in point 1(a) of Annex I without also
home Member State:
providing the services referred to in point 1(b) of Annex I
or vice versa.
(a) information about the investment strategies including the
types of underlying funds if the AIF is a fund of funds,
6. Article 2(2) and Articles 12, 13 and 19 of Directive
and the AIFM’s policy as regards the use of leverage, and
2004/39/EC shall apply to the provision of the services
the risk profiles and other characteristics of the AIFs it
referred to in paragraph 4 of this Article by AIFMs.
manages or intends to manage, including information
about the Member States or third countries in which such
7. Member
States
shall
require
that
the
AIFMs
provide
the
AIFs are established or are expected to be established;
competent authorities of their home Member State with the
information they require to monitor compliance with the
conditions referred to in this Directive at all times.
(b) information on where the master AIF is established if the
AIF is a feeder AIF;
8. Investment
firms
authorised
under
Directive
2004/39/EC
and credit institutions authorised under Directive 2006/48/EC
(c) the rules or instruments of incorporation of each AIF the
shall not be required to obtain an authorisation under this
AIFM intends to manage;
Directive in order to provide investment services such as indi
vidual portfolio management in respect of AIFs. However,
investment firms shall, directly or indirectly, offer units or
(d) information on the arrangements made for the appointment
shares of AIFs to, or place such units or shares with,
of the depositary in accordance with Article 21 for each AIF
investors in the Union, only to the extent the units or shares
the AIFM intends to manage;
can be marketed in accordance with this Directive.
(e) any additional information referred to in Article 23(1) for
Article 7
each AIF the AIFM manages or intends to manage.
Application for authorisation
1. Member
States
shall
require
that
AIFMs
apply
for
auth
4. Where
a
management
company
is
authorised
pursuant
to
orisation from the competent authorities of their home Member
Directive 2009/65/EC (UCITS management company) and
State.
applies for authorisation as an AIFM under this Directive, the
competent authorities shall not require the UCITS management
company to provide information or documents which the
2. Member
States
shall
require
that
an
AIFM
applying
for
an UCITS management company has already provided when
authorisation shall provide the following information relating to
applying for authorisation under Directive 2009/65/EC,
the AIFM to the competent authorities of its home Member
provided that such information or documents remain up-to-
State:
date.

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1.7.2011 Official
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European
Union L
174/21
5. The
competent
authorities
shall,
on
a
quarterly
basis, (e) the head office and the registered office of the AIFM are
inform ESMA of authorisations granted or withdrawn in
located in the same Member State.
accordance with this Chapter.
Authorisation shall be valid for all Member States.
ESMA shall keep a central public register identifying each AIFM
authorised under this Directive, a list of the AIFs managed
and/or marketed in the Union by such AIFMs and the
2. The
relevant
competent
authorities
of
the
other
Member
competent authority for each such AIFM. The register shall be
States involved shall be consulted before authorisation is
made available in electronic format.
granted to the following AIFMs:
6. In
order
to
ensure
consistent
harmonisation
of
this (a) a subsidiary of another AIFM, of a UCITS management
Article, ESMA may develop draft regulatory technical
company, of an investment firm, of a credit institution or
standards to specify the information to be provided to the
of an insurance undertaking authorised in another Member
competent authorities in the application for the authorisation
State;
of the AIFM, including the programme of activity.
(b) a subsidiary of the parent undertaking of another AIFM, of a
Power is delegated to the Commission to adopt the regulatory
UCITS management company, of an investment firm, of a
technical standards referred to in the first subparagraph in
credit institution or of an insurance undertaking authorised
accordance with Articles 10 to 14 of Regulation (EU) No
in another Member State; and
1095/2010.
(c) a company controlled by the same natural or legal persons
7. In
order
to
ensure
uniform
conditions
of
application
of
as those that control another AIFM, a UCITS management
this Article, ESMA may develop draft implementing technical
company, an investment firm, a credit institution or an
standards to determine standard forms, templates and
insurance undertaking authorised in another Member State.
procedures for the provision of information provided for in
the first subparagraph of paragraph 6.
3. The
competent
authorities
of
the
home
Member
State
of
the AIFM shall refuse authorisation where the effective exercise
Power is conferred on the Commission to adopt the imple
of their supervisory functions is prevented by any of the
menting technical standards referred to in the first subparagraph
following:
in accordance with Article 15 of Regulation (EU)
No 1095/2010.
(a) close links between the AIFM and other natural or legal
persons;
Article 8
Conditions for granting authorisation
(b) the laws, regulations or administrative provisions of a third
1. The
competent
authorities
of
the
home
Member
State
of
country governing natural or legal persons with which the
the AIFM shall not grant authorisation unless:
AIFM has close links;
(a) they are satisfied that the AIFM will be able to meet the
(c) difficulties involved in the enforcement of those laws, regu
conditions of this Directive;
lations and administrative provisions.
(b) the AIFM has sufficient initial capital and own funds in
4. The
competent
authorities
of
the
home
Member
State
of
accordance with Article 9;
the AIFM may restrict the scope of the authorisation, in
particular as regards the investment strategies of AIFs the
AIFM is allowed to manage.
(c) the persons who effectively conduct the business of the
AIFM are of sufficiently good repute and are sufficiently
experienced also in relation to the investment strategies
5. The
competent
authorities
of
the
home
Member
State
of
pursued by the AIFs managed by the AIFM, the names of
the AIFM shall inform the applicant in writing within 3 months
those persons and of every person succeeding them in office
of the submission of a complete application, whether or not
being communicated forthwith to the competent authorities
authorisation has been granted. The competent authorities may
of the home Member State of the AIFM and the conduct of
prolong this period for up to three additional months, where
the business of the AIFM being decided by at least two
they consider it necessary due to the specific circumstances of
persons meeting such conditions;
the case and after having notified the AIFM accordingly.
(d) the shareholders or members of the AIFM that have qual
For the purpose of this paragraph an application is deemed
ifying holdings are suitable taking into account the need to
complete if the AIFM has at least submitted the information
ensure the sound and prudent management of the AIFM;
referred to in points (a) to (d) of Article 7(2) and points (a) and
and
(b) of Article 7(3).

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L 174/22
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AIFMs may start managing AIFs with investment strategies
paragraph 3 if they benefit from a guarantee of the same
described in the application in accordance with point (a) of
amount given by a credit institution or an insurance under
Article 7(3) in their home Member State as soon as the auth
taking which has its registered office in a Member State, or in
orisation is granted, but not earlier than 1 month after having
a third country where it is subject to prudential rules considered
submitted any missing information referred to in point (e) of
by the competent authorities as equivalent to those laid down
Article 7(2) and points (c), (d) and (e) of Article 7(3).
in Union law.
6. In
order
to
ensure
consistent
harmonisation
of
this 7. To
cover
potential
professional
liability
risks
resulting
Article, ESMA may develop draft regulatory technical
from activities AIFMs may carry out pursuant to this Directive,
standards to specify the:
both internally managed AIFs and external AIFMs shall either:
(a) requirements applicable to the AIFMs under paragraph 3;
(a) have additional own funds which are appropriate to cover
potential liability risks arising from professional negligence;
or
(b) requirements applicable to shareholders and members with
qualifying holdings referred to in point (d) of paragraph 1;
(b) hold a professional indemnity insurance against liability
(c) obstacles which may prevent effective exercise of the super
arising from professional negligence which is appropriate
visory functions of the competent authorities.
to the risks covered.
Power is delegated to the Commission to adopt the regulatory
8. Own
funds,
including
any
additional
own
funds
as
technical standards referred to in the first subparagraph in
referred to in point (a) of paragraph 7, shall be invested in
accordance with Articles 10 to 14 of Regulation (EU)
liquid assets or assets readily convertible to cash in the short
No 1095/2010.
term and shall not include speculative positions.
Article 9
9. The
Commission
shall
adopt,
by
means
of
delegated
acts
in accordance with Article 56 and subject to the conditions of
Initial capital and own funds
Articles 57 and 58, measures in relation to paragraph 7 of this
1. Member
States
shall
require
that
an
AIFM
which
is
an Article specifying:
internally managed AIF has an initial capital of at least
EUR 300 000.
(a) the risks the additional own funds or the professional
indemnity insurance must cover;
2. Where
an
AIFM
is
appointed
as
external
manager
of
AIFs,
the AIFM shall have an initial capital of at least EUR 125 000.
(b) the conditions for determining the appropriateness of addi
tional own funds or the coverage of the professional
3. Where the value of the portfolios of AIFs managed by the
indemnity insurance; and
AIFM exceeds EUR 250 million, the AIFM shall provide an
additional amount of own funds. That additional amount of
own funds shall be equal to 0,02 % of the amount by which
the value of the portfolios of the AIFM exceeds EUR 250
(c) the manner of determining ongoing adjustments of the
million but the required total of the initial capital and the
additional own funds or of the coverage of the professional
additional amount shall not, however, exceed EUR 10 million.
indemnity insurance.
4. For
the
purpose
of
paragraph
3,
AIFs
managed
by
the 10. With the exception of paragraphs 7 and 8 and of the
AIFM, including AIFs for which the AIFM has delegated
delegated acts adopted pursuant to paragraph 9, this Article
functions in accordance with Article 20 but excluding AIF port
shall not apply to AIFMs which are also UCITS management
folios that the AIFM is managing under delegation, shall be
companies.
deemed to be the portfolios of the AIFM.
Article 10
5. Irrespective of paragraph 3, the own funds of the AIFM
shall never be less than the amount required under Article 21 of
Changes in the scope of the authorisation
Directive 2006/49/EC.
1. Member
States
shall
require
that
AIFMs,
before
implemen
tation, notify the competent authorities of their home Member
State of any material changes to the conditions for initial auth
6. Member States may authorise AIFMs not to provide up to
orisation, in particular material changes to the information
50 % of the additional amount of own funds referred to in
provided in accordance with Article 7.

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1.7.2011 Official
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of
the
European
Union L
174/23
2. If the competent authorities of the home Member State
(a) act honestly, with due skill, care and diligence and fairly in
decide to impose restrictions or reject those changes, they shall,
conducting their activities;
within 1 month of receipt of that notification, inform the AIFM.
The competent authorities may prolong that period for up to 1
month where they consider this to be necessary because of the
specific circumstances of the case and after having notified the
(b) act in the best interests of the AIFs or the investors of the
AIFM accordingly. The changes shall be implemented if the
AIFs they manage and the integrity of the market;
relevant competent authorities do not oppose the changes
within the relevant assessment period.
(c) have and employ effectively the resources and procedures
that are necessary for the proper performance of their
Article 11
business activities;
Withdrawal of the authorisation
The competent authorities of the home Member State of the
(d) take all reasonable steps to avoid conflicts of interest and,
AIFM may withdraw the authorisation issued to an AIFM where
when they cannot be avoided, to identify, manage and
that AIFM:
monitor and, where applicable, disclose, those conflicts of
interest in order to prevent them from adversely affecting
the interests of the AIFs and their investors and to ensure
(a) does not make use of the authorisation within 12 months,
that the AIFs they manage are fairly treated;
expressly renounces the authorisation or has ceased the
activity covered by this Directive for the preceding 6
months, unless the Member State concerned has provided
(e) comply with all regulatory requirements applicable to the
for authorisation to lapse in such cases;
conduct of their business activities so as to promote the
best interests of the AIFs or the investors of the AIFs they
manage and the integrity of the market;
(b) obtained the authorisation by making false statements or by
any other irregular means;
(f) treat all AIF investors fairly.
(c) no longer meets the conditions under which authorisation
was granted;
No investor in an AIF shall obtain preferential treatment, unless
such preferential treatment is disclosed in the relevant AIF’s
rules or instruments of incorporation.
(d) no longer complies with Directive 2006/49/EC if its auth
orisation also covers the discretionary portfolio
management service referred to in point (a) of Article 6(4)
2. Each
AIFM
the
authorisation
of
which
also
covers
the
of this Directive;
discretionary portfolio management service referred to in
point (a) of Article 6(4) shall:
(e) has seriously or systematically infringed the provisions
adopted pursuant to this Directive; or
(a) not be permitted to invest all or part of the client’s portfolio
in units or shares of the AIFs it manages, unless it receives
prior general approval from the client;
(f) falls within any of the cases where national law, in respect
of matters outside the scope of this Directive, provides for
withdrawal.
(b) with regard to the services referred to in Article 6(4), be
subject to Directive 97/9/EC of the European Parliament and
of the Council of 3 March 1997 on investor-compensation
CHAPTER III
schemes ( 1 ).
OPERATING CONDITIONS FOR AIFMs
SECTION 1
3. The
Commission
shall
adopt,
by
means
of
delegated
acts
General requirements
in accordance with Article 56 and subject to the conditions of
Articles 57 and 58, measures specifying the criteria to be used
Article 12
by the relevant competent authorities to assess whether AIFMs
comply with their obligations under paragraph 1.
General principles
1. Member States shall ensure that, at all times, AIFMs:
( 1 ) OJ L 84, 26.3.1997, p. 22.

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1.7.2011
Article 13
AIFMs shall segregate, within their own operating environment,
tasks and responsibilities which may be regarded as incom
Remuneration
patible with each other or which may potentially generate
1. Member
States
shall
require
AIFMs
to
have
remuneration systematic conflicts of interest. AIFMs shall assess whether
policies and practices for those categories of staff, including
their operating conditions may involve any other material
senior management, risk takers, control functions, and any
conflicts of interest and disclose them to the investors of the
employees receiving total remuneration that takes them into
AIFs.
the same remuneration bracket as senior management and
risk takers, whose professional activities have a material
impact on the risk profiles of the AIFMs or of the AIFs they
2. Where
organisational
arrangements
made
by
the
AIFM
to
manage, that are consistent with and promote sound and
identify, prevent, manage and monitor conflicts of interest are
effective risk management and do not encourage risk-taking
not sufficient to ensure, with reasonable confidence, that risks
which is inconsistent with the risk profiles, rules or instruments
of damage to investors’ interests will be prevented, the AIFM
of incorporation of the AIFs they manage.
shall clearly disclose the general nature or sources of conflicts of
interest to the investors before undertaking business on their
behalf, and develop appropriate policies and procedures.
The AIFMs shall determine the remuneration policies and
practices in accordance with Annex II.
3.
Where the AIFM on behalf of an AIF uses the services of a
prime broker, the terms shall be set out in a written contract. In
2. ESMA
shall
ensure
the
existence
of
guidelines
on
sound particular any possibility of transfer and reuse of AIF assets shall
remuneration policies which comply with Annex II. The
be provided for in that contract and shall comply with the AIF
guidelines shall take into account the principles on sound
rules or instruments of incorporation. The contract shall
remuneration policies set out in Recommendation
provide that the depositary be informed of the contract.
2009/384/EC, the size of the AIFMs and the size of AIFs they
manage, their internal organisation and the nature, the scope
and the complexity of their activities. ESMA shall cooperate
AIFMs shall exercise due skill, care and diligence in the selection
closely with the European Supervisory Authority (European
and appointment of prime brokers with whom a contract is to
Banking Authority) (EBA).
be concluded.
Article 14
4. The
Commission
shall
adopt,
by
means
of
delegated
acts
Conflicts of interest
in accordance with Article 56 and subject to the conditions of
Articles 57 and 58, measures specifying:
1. Member
States
shall
require
AIFMs
to
take
all
reasonable
steps to identify conflicts of interest that arise in the course of
managing AIFs between:
(a) the types of conflicts of interest as referred to in
paragraph 1;
(a) the AIFM, including its managers, employees or any person
directly or indirectly linked to the AIFM by control, and the
(b) the reasonable steps AIFMs are expected to take in terms of
AIF managed by the AIFM or the investors in that AIF;
structures and organisational and administrative procedures
in order to identify, prevent, manage, monitor and disclose
conflicts of interest.
(b) the AIF or the investors in that AIF, and another AIF or the
investors in that AIF;
Article 15
(c) the AIF or the investors in that AIF, and another client of
Risk management
the AIFM;
1. AIFMs shall functionally and hierarchically separate the
functions of risk management from the operating units,
including from the functions of portfolio management.
(d) the AIF or the investors in that AIF, and a UCITS managed
by the AIFM or the investors in that UCITS; or
The functional and hierarchical separation of the functions of
risk management in accordance with the first subparagraph
(e) two clients of the AIFM.
shall be reviewed by the competent authorities of the home
Member State of the AIFM in accordance with the principle
of proportionality, on the understanding that the AIFM shall,
AIFMs shall maintain and operate effective organisational and
in any event, be able to demonstrate that specific safeguards
administrative arrangements with a view to taking all reasonable
against conflicts of interest allow for the independent
steps designed to identify, prevent, manage and monitor
performance of risk management activities and that the risk
conflicts of interest in order to prevent them from adversely
management process satisfies the requirements of this Article
affecting the interests of the AIFs and their investors.
and is consistently effective.

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of
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European
Union L
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2. AIFMs
shall
implement
adequate
risk
management
systems (h) the scale, nature and extent of the activity of the AIFM on
in order to identify, measure, manage and monitor appro
the markets concerned.
priately all risks relevant to each AIF investment strategy and
to which each AIF is or may be exposed.
5. The
Commission
shall
adopt,
by
means
of
delegated
acts
in accordance with Article 56 and subject to the conditions of
AIFMs shall review the risk management systems with appro
Articles 57 and 58, measures specifying:
priate frequency at least once a year and adapt them whenever
necessary.
(a) the risk management systems to be employed by AIFMs in
relation to the risks which they incur on behalf of the AIFs
3. AIFMs
shall
at
least:
that they manage;
(a) implement an appropriate, documented and regularly
(b) the appropriate frequency of review of the risk management
updated due diligence process when investing on behalf of
system;
the AIF, according to the investment strategy, the objectives
and risk profile of the AIF;
(c) how the risk management function is to be functionally and
hierarchically separated from the operating units, including
(b) ensure that the risks associated with each investment
the portfolio management function;
position of the AIF and their overall effect on the AIF’s
portfolio can be properly identified, measured, managed
and monitored on an ongoing basis, including through
(d) specific safeguards against conflicts of interest referred to in
the use of appropriate stress testing procedures;
the second subparagraph of paragraph 1;
(c) ensure that the risk profile of the AIF shall correspond to
(e) the requirements referred to in paragraph 3.
the size, portfolio structure and investment strategies and
objectives of the AIF as laid down in the AIF rules or
instruments of incorporation, prospectus and offering
documents.
Article 16
Liquidity management
4. AIFMs
shall
set
a
maximum
level
of
leverage
which
they 1. AIFMs
shall,
for
each
AIF
that
they
manage
which
is
not
may employ on behalf of each AIF they manage as well as the
an unleveraged closed-ended AIF, employ an appropriate
extent of the right to reuse collateral or guarantee that could be
liquidity management system and adopt procedures which
granted under the leveraging arrangement, taking into account,
enable them to monitor the liquidity risk of the AIF and to
inter alia:
ensure that the liquidity profile of the investments of the AIF
complies with its underlying obligations.
(a) the type of the AIF;
AIFMs shall regularly conduct stress tests, under normal and
exceptional liquidity conditions, which enable them to assess
the liquidity risk of the AIFs and monitor the liquidity risk of
(b) the investment strategy of the AIF;
the AIFs accordingly.
(c) the sources of leverage of the AIF;
2. AIFMs
shall
ensure
that,
for
each
AIF
that
they
manage,
the investment strategy, the liquidity profile and the redemption
policy are consistent.
(d) any other interlinkage or relevant relationships with other
financial services institutions, which could pose systemic
risk;
3. The
Commission
shall
adopt,
by
means
of
delegated
acts
in accordance with Article 56 and subject to the conditions of
Articles 57 and 58, measures specifying:
(e) the need to limit the exposure to any single counterparty;
(a) the liquidity management systems and procedures; and
(f) the extent to which the leverage is collateralised;
(b) the alignment of the investment strategy, liquidity profile
(g) the asset-liability ratio;
and redemption policy set out in paragraph 2.

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L 174/26
EN
Official Journal of the European Union
1.7.2011
Article 17
Article 19
Investment in securitisation positions
Valuation
In order to ensure cross-sectoral consistency and to remove
1. AIFMs
shall
ensure
that,
for
each
AIF
that
they
manage,
misalignment between the interest of firms that repackage
appropriate and consistent procedures are established so that a
loans into tradable securities and originators within the
proper and independent valuation of the assets of the AIF can
meaning of point (41) of Article 4 of Directive 2006/48/EC,
be performed in accordance with this Article, the applicable
and AIFMs that invest in those securities or other financial
national law and the AIF rules or instruments of incorporation.
instruments on behalf of AIFs, the Commission shall adopt,
by means of delegated acts in accordance with Article 56 and
subject to the conditions of Articles 57 and 58, measures laying
2. The
rules
applicable
to
the
valuation
of
assets
and
the
down the requirements in the following areas:
calculation of the net asset value per unit or share of the AIF
shall be laid down in the law of the country where the AIF is
established and/or in the AIF rules or instruments of incor
poration.
(a) the requirements that need to be met by the originator, the
sponsor or the original lender, in order for an AIFM to be
allowed to invest in securities or other financial instruments
3.
AIFMs shall also ensure that the net asset value per unit or
of this type issued after 1 January 2011 on behalf of AIFs,
share of AIFs is calculated and disclosed to the investors in
including requirements that ensure that the originator, the
accordance with this Article, the applicable national law and
sponsor or the original lender retains a net economic
the AIF rules or instruments of incorporation.
interest of not less than 5 %;
The valuation procedures used shall ensure that the assets are
valued and the net asset value per unit or share is calculated at
least once a year.
(b) qualitative requirements that must be met by AIFMs which
invest in these securities or other financial instruments on
behalf of one or more AIFs.
If the AIF is of the open-ended type, such valuations and calcu
lations shall also be carried out at a frequency which is both
appropriate to the assets held by the AIF and its issuance and
redemption frequency.
SECTION 2
Organisational requirements
If the AIF is of the closed-ended type, such valuations and
Article 18
calculations shall also be carried out in case of an increase or
decrease of the capital by the relevant AIF.
General principles
1. Member
States
shall
require
that
AIFMs
use,
at
all
times,
adequate and appropriate human and technical resources that
The investors shall be informed of the valuations and calcu
are necessary for the proper management of AIFs.
lations as set out in the relevant AIF rules or instruments of
incorporation.
4. AIFMs shall ensure that the valuation function is either
In particular, the competent authorities of the home Member
performed by:
State of the AIFM, having regard also to the nature of the AIFs
managed by the AIFM, shall require that the AIFM has sound
administrative and accounting procedures, control and
(a) an external valuer, being a legal or natural person inde
safeguard arrangements for electronic data processing and
pendent from the AIF, the AIFM and any other persons
adequate internal control mechanisms including, in particular,
with close links to the AIF or the AIFM; or
rules for personal transactions by its employees or for the
holding or management of investments in order to invest on
its own account and ensuring, at least, that each transaction
(b) the AIFM itself, provided that the valuation task is func
involving the AIFs may be reconstructed according to its
tionally independent from the portfolio management and
origin, the parties to it, its nature, and the time and place at
the remuneration policy and other measures ensure that
which it was effected and that the assets of the AIFs managed
conflicts of interest are mitigated and that undue influence
by the AIFM are invested in accordance with the AIF rules or
upon the employees is prevented.
instruments of incorporation and the legal provisions in force.
The depositary appointed for an AIF shall not be appointed as
external valuer of that AIF, unless it has functionally and hier
2. The
Commission
shall
adopt,
by
means
of
delegated
acts archically separated the performance of its depositary functions
in accordance with Article 56 and subject to the conditions of
from its tasks as external valuer and the potential conflicts of
Articles 57 and 58, measures specifying the procedures and
interest are properly identified, managed, monitored and
arrangements as referred to in paragraph 1.
disclosed to the investors of the AIF.

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EN
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of
the
European
Union L
174/27
5. Where an external valuer performs the valuation function,
(c) the frequency of valuation carried out by open-ended AIFs
the AIFM shall demonstrate that:
which is both appropriate to the assets held by the AIF and
its issuance and redemption policy.
(a) the external valuer is subject to mandatory professional
registration recognised by law or to legal or regulatory
provisions or rules of professional conduct;
SECTION 3
Delegation of AIFM functions
(b) the external valuer can provide sufficient professional guar
Article 20
antees to be able to perform effectively the relevant
valuation function in accordance with paragraphs 1, 2
Delegation
and 3; and
1. AIFMs which intend to delegate to third parties the task of
carrying out functions on their behalf shall notify the
(c) the appointment of the external valuer complies with the
competent authorities of their home Member State before the
requirements of Article 20(1) and (2) and the delegated acts
delegation arrangements become effective. The following
adopted pursuant to Article 20(7).
conditions shall be met:
6. The appointed external valuer shall not delegate the
valuation function to a third party.
(a) the AIFM must be able to justify its entire delegation
structure on objective reasons;
7. AIFMs
shall
notify
the
appointment
of
the
external
valuer
to the competent authorities of their home Member State which
may require that another external valuer be appointed instead,
(b) the delegate must dispose of sufficient resources to perform
where the conditions laid down in paragraph 5 are not met.
the respective tasks and the persons who effectively conduct
the business of the delegate must be of sufficiently good
repute and sufficiently experienced;
8. The
valuation
shall
be
performed
impartially
and
with
all
due skill, care and diligence.
(c) where the delegation concerns portfolio management or risk
9. Where
the
valuation
function
is
not
performed
by
an
management, it must be conferred only on undertakings
independent external valuer, the competent authorities of the
which are authorised or registered for the purpose of asset
home Member State of the AIFM may require the AIFM to have
management and subject to supervision or, where that
its valuation procedures and/or valuations verified by an
condition cannot be met, only subject to prior approval
external valuer or, where appropriate, by an auditor.
by the competent authorities of the home Member State
of the AIFM;
10. AIFMs
are
responsible
for
the
proper
valuation
of
AIF
assets, the calculation of the net asset value and the publication
of that net asset value. The AIFM’s liability towards the AIF and
(d) where the delegation concerns portfolio management or risk
its investors shall, therefore, not be affected by the fact that the
management and is conferred on a third-country under
AIFM has appointed an external valuer.
taking, in addition to the requirements in point (c), coop
eration between the competent authorities of the home
Member State of the AIFM and the supervisory authority
Notwithstanding the first subparagraph and irrespective of any
of the undertaking must be ensured;
contractual arrangements providing otherwise, the external
valuer shall be liable to the AIFM for any losses suffered by
the AIFM as a result of the external valuer’s negligence or
intentional failure to perform its tasks.
(e) the delegation must not prevent the effectiveness of super
vision of the AIFM, and, in particular, must not prevent the
AIFM from acting, or the AIF from being managed, in the
11. The
Commission
shall
adopt,
by
means
of
delegated
acts
best interests of its investors;
in accordance with Article 56 and subject to the conditions of
Articles 57 and 58, measures specifying:
(f) the AIFM must be able to demonstrate that the delegate is
(a) the criteria concerning the procedures for the proper
qualified and capable of undertaking the functions in
valuation of the assets and the calculation of the net asset
question, that it was selected with all due care and that
value per unit or share;
the AIFM is in a position to monitor effectively at any
time the delegated activity, to give at any time further
instructions to the delegate and to withdraw the delegation
(b) the professional guarantees the external valuer must be able
with immediate effect when this is in the interest of
to provide to effectively perform the valuation function;
investors.

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L 174/28
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Official Journal of the European Union
1.7.2011
The AIFM shall review the services provided by each delegate on
7. The
Commission
shall
adopt,
by
means
of
delegated
acts
an ongoing basis.
in accordance with Article 56 and subject to the conditions of
Articles 57 and 58, measures specifying:
2. No delegation of portfolio management or risk
management shall be conferred on:
(a) the conditions for fulfilling the requirements set out in
paragraphs 1, 2, 4 and 5;
(a) the depositary or a delegate of the depositary; or
(b) any other entity whose interests may conflict with those of
(b) the conditions under which the AIFM shall be deemed to
the AIFM or the investors of the AIF, unless such entity has
have delegated its functions to the extent that it becomes a
functionally and hierarchically separated the performance of
letter-box entity and can no longer be considered to be the
its portfolio management or risk management tasks from its
manager of the AIF as set out in paragraph 3.
other potentially conflicting tasks, and the potential conflicts
of interest are properly identified, managed, monitored and
disclosed to the investors of the AIF.
SECTION 4
3. The
AIFM’s
liability
towards
the
AIF
and
its
investors
shall
Depositary
not be affected by the fact that the AIFM has delegated
functions to a third party, or by any further sub-delegation,
Article 21
nor shall the AIFM delegate its functions to the extent that,
Depositary
in essence, it can no longer be considered to be the manager
of the AIF and to the extent that it becomes a letter-box entity.
1. For each AIF it manages, the AIFM shall ensure that a
single depositary is appointed in accordance with this Article.
4. The
third
party
may
sub-delegate
any
of
the
functions
delegated to it provided that the following conditions are met:
2. The
appointment
of
the
depositary
shall
be
evidenced
by
written contract. The contract shall, inter alia, regulate the flow
(a) the AIFM consented prior to the sub-delegation;
of information deemed necessary to allow the depositary to
perform its functions for the AIF for which it has been
appointed as depositary, as set out in this Directive and in
(b) the AIFM notified the competent authorities of its home
other relevant laws, regulations or administrative provisions.
Member State before the sub-delegation arrangements
become effective;
3. The
depositary
shall
be:
(c) the conditions set out in paragraph 1, on the understanding
that all references to the ‘delegate’ are read as references to
the ‘sub-delegate’.
(a) a credit institution having its registered office in the Union
5. No
sub-delegation
of
portfolio
management
or
risk
and authorised in accordance with Directive 2006/48/EC;
management shall be conferred on:
(a) the depositary or a delegate of the depositary; or
(b) an investment firm having its registered office in the Union,
subject to capital adequacy requirements in accordance with
Article 20(1) of Directive 2006/49/EC including capital
(b) any other entity whose interests may conflict with those of
requirements for operational risks and authorised in
the AIFM or the investors of the AIF, unless such entity has
accordance with Directive 2004/39/EC and which also
functionally and hierarchically separated the performance of
provides the ancillary service of safe-keeping and adminis
its portfolio management or risk management tasks from its
tration of financial instruments for the account of clients in
other potentially conflicting tasks, and the potential conflicts
accordance with point (1) of Section B of Annex I to
of interest are properly identified, managed, monitored and
Directive 2004/39/EC; such investment firms shall in any
disclosed to the investors of the AIF.
case have own funds not less than the amount of initial
capital referred to in Article 9 of Directive 2006/49/EC; or
The relevant delegate shall review the services provided by each
sub-delegate on an ongoing basis.
(c) another category of institution that is subject to prudential
regulation and ongoing supervision and which, on 21 July
6. Where
the
sub-delegate
further
delegates
any
of
the
2011, falls within the categories of institution determined
functions delegated to it, the conditions set out in paragraph
by Member States to be eligible to be a depositary under
4 shall apply mutatis mutandis.
Article 23(3) of Directive 2009/65/EC.

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EN
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European
Union L
174/29
For non-EU AIFs only, and without prejudice to point (b) of
(b) the depositary is subject to effective prudential regulation,
paragraph 5, the depositary may also be a credit institution or
including minimum capital requirements, and supervision
any other entity of the same nature as the entities referred to in
which have the same effect as Union law and are effectively
points (a) and (b) of the first subparagraph of this paragraph
enforced;
provided that the conditions in point (b) of paragraph 6 are
met.
(c) the third country where the depositary is established is not
listed as a Non-Cooperative Country and Territory by FATF;
In addition, Member States may allow that in relation to AIFs
which have no redemption rights exercisable during the period
of 5 years from the date of the initial investments and which, in
(d) the Member States in which the units or shares of the non-
accordance with their core investment policy, generally do not
EU AIF are intended to be marketed, and, in so far as
invest in assets that must be held in custody in accordance with
different, the home Member State of the AIFM, have
point (a) of paragraph 8 or generally invest in issuers or non-
signed an agreement with the third country where the
listed companies in order to potentially acquire control over
depositary is established which fully complies with the
such companies in accordance with Article 26, the depositary
standards laid down in Article 26 of the OECD Model
may be an entity which carries out depositary functions as part
Tax Convention on Income and on Capital and ensures
of its professional or business activities in respect of which such
an effective exchange of information in tax matters
entity is subject to mandatory professional registration
including any multilateral tax agreements;
recognised by law or to legal or regulatory provisions or rules
of professional conduct and which can provide sufficient
financial and professional guarantees to enable it to perform
effectively the relevant depositary functions and meet the
(e) the depositary shall by contract be liable to the AIF or to
commitments inherent in those functions.
the investors of the AIF, consistently with paragraphs 12
and 13, and shall expressly agree to comply with
paragraph 11.
4. In
order
to
avoid
conflicts
of
interest
between
the
depositary, the AIFM and/or the AIF and/or its investors:
Where a competent authority of another Member State
disagrees with the assessment made on the application of
(a) an AIFM shall not act as depositary;
points (a), (c) or (e) of the first subparagraph by the
competent authorities of the home Member State of the
AIFM, the competent authorities concerned may refer the
(b) a prime broker acting as counterparty to an AIF shall not
matter to the ESMA which may act in accordance with the
act as depositary for that AIF, unless it has functionally and
powers conferred on it under Article 19 of Regulation (EU)
hierarchically separated the performance of its depositary
No 1095/2010.
functions from its tasks as prime broker and the potential
conflicts of interest are properly identified, managed,
monitored and disclosed to the investors of the AIF.
On the basis of the criteria referred to in point (b) of paragraph
Delegation by the depositary to such prime broker of its
17, the Commission shall adopt implementing acts, stating that
custody tasks in accordance with paragraph 11 is allowed if
prudential regulation and supervision of a third country have
the relevant conditions are met.
the same effect as Union law and are effectively enforced. Those
implementing acts shall be adopted in accordance with the
5. The
depositary
shall
be
established
in
one
of
the
following examination procedure referred to in Article 59(2).
locations:
7. The
depositary
shall
in
general
ensure
that
the
AIF’s
cash
(a) for EU AIFs, in the home Member State of the AIF;
flows are properly monitored, and shall in particular ensure that
all payments made by or on behalf of investors upon the
subscription of units or shares of an AIF have been received
(b) for non-EU AIFs, in the third country where the AIF is
and that all cash of the AIF has been booked in cash accounts
established or in the home Member State of the AIFM
opened in the name of the AIF or in the name of the AIFM
managing the AIF or in the Member State of reference of
acting on behalf of the AIF or in the name of the depositary
the AIFM managing the AIF.
acting on behalf of the AIF at an entity referred to in points (a),
(b) and (c) of Article 18(1) of Directive 2006/73/EC, or another
6. Without
prejudice
to
the
requirements
set
out
in entity of the same nature, in the relevant market where cash
paragraph 3, the appointment of a depositary established in a
accounts are required provided that such entity is subject to
third country shall, at all times, be subject to the following
effective prudential regulation and supervision which have the
conditions:
same effect as Union law and are effectively enforced and in
accordance with the principles set out in Article 16 of Directive
2006/73/EC.
(a) the competent authorities of the Member States in which
the units or shares of the non-EU AIF are intended to be
marketed, and, in so far as different, of the home Member
Where the cash accounts are opened in the name of the
State of the AIFM, have signed cooperation and exchange of
depositary acting on behalf of the AIF, no cash of the entity
information arrangements with the competent authorities of
referred to in the first subparagraph and none of the
the depositary;
depositary’s own cash shall be booked on such accounts.

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L 174/30
EN
Official Journal of the European Union
1.7.2011
8. The
assets
of
the
AIF
or
the
AIFM
acting
on
behalf
of
the (d) ensure that in transactions involving the AIF’s assets any
AIF shall be entrusted to the depositary for safe-keeping, as
consideration is remitted to the AIF within the usual time
follows:
limits;
(a) for financial instruments that can be held in custody:
(e) ensure that an AIF’s income is applied in accordance with
the applicable national law and the AIF rules or instruments
of incorporation.
(i) the depositary shall hold in custody all financial
instruments that can be registered in a financial
instruments account opened in the depositary’s books
10. In the context of their respective roles, the AIFM and the
and all financial instruments that can be physically
depositary shall act honestly, fairly, professionally, inde
delivered to the depositary;
pendently and in the interest of the AIF and the investors of
the AIF.
(ii) for that purpose, the depositary shall ensure that all
A depositary shall not carry out activities with regard to the AIF
those financial instruments that can be registered in a
or the AIFM on behalf of the AIF that may create conflicts of
financial instruments account opened in the depositary’s
interest between the AIF, the investors in the AIF, the AIFM and
books are registered in the depositary’s books within
itself, unless the depositary has functionally and hierarchically
segregated accounts in accordance with the principles
separated the performance of its depositary tasks from its other
set out in Article 16 of Directive 2006/73/EC, opened
potentially conflicting tasks, and the potential conflicts of
in the name of the AIF or the AIFM acting on behalf of
interest are properly identified, managed, monitored and
the AIF, so that they can be clearly identified as
disclosed to the investors of the AIF.
belonging to the AIF in accordance with the applicable
law at all times;
The assets referred to in paragraph 8 shall not be reused by the
depositary without the prior consent of the AIF or the AIFM
(b) for other assets:
acting on behalf of the AIF.
(i) the depositary shall verify the ownership of the AIF or
11. The
depositary
shall
not
delegate
to
third
parties
its
the AIFM acting on behalf of the AIF of such assets and
functions as described in this Article, save for those referred
shall maintain a record of those assets for which it is
to in paragraph 8.
satisfied that the AIF or the AIFM acting on behalf of
the AIF holds the ownership of such assets;
The depositary may delegate to third parties the functions
referred to in paragraph 8 subject to the following conditions:
(ii) the assessment whether the AIF or the AIFM acting on
behalf of the AIF holds the ownership shall be based on
information or documents provided by the AIF or the
(a) the tasks are not delegated with the intention of avoiding
AIFM and, where available, on external evidence;
the requirements of this Directive;
(iii) the depositary shall keep its record up-to-date.
(b) the depositary can demonstrate that there is an objective
reason for the delegation;
9. In addition to the tasks referred to in paragraphs 7 and 8,
the depositary shall:
(c) the depositary has exercised all due skill, care and diligence
in the selection and the appointment of any third party to
whom it wants to delegate parts of its tasks, and keeps
exercising all due skill, care and diligence in the periodic
(a) ensure that the sale, issue, re-purchase, redemption and
review and ongoing monitoring of any third party to whom
cancellation of units or shares of the AIF are carried out
it has delegated parts of its tasks and of the arrangements of
in accordance with the applicable national law and the AIF
the third party in respect of the matters delegated to it; and
rules or instruments of incorporation;
(d) the depositary ensures that the third party meets the
(b) ensure that the value of the units or shares of the AIF is
following conditions at all times during the performance
calculated in accordance with the applicable national law,
of the tasks delegated to it:
the AIF rules or instruments of incorporation and the
procedures laid down in Article 19;
(i) the third party has the structures and the expertise that
are adequate and proportionate to the nature and
(c) carry out the instructions of the AIFM, unless they conflict
complexity of the assets of the AIF or the AIFM
with the applicable national law or the AIF rules or
acting on behalf of the AIF which have been
instruments of incorporation;
entrusted to it;

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European
Union L
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(ii) for custody tasks referred to in point (a) of paragraph 8,
In the case of such a loss of a financial instrument held in
the third party is subject to effective prudential regu
custody, the depositary shall return a financial instrument of
lation, including minimum capital requirements, and
identical type or the corresponding amount to the AIF or the
supervision in the jurisdiction concerned and the third
AIFM acting on behalf of the AIF without undue delay. The
party is subject to an external periodic audit to ensure
depositary shall not be liable if it can prove that the loss has
that the financial instruments are in its possession;
arisen as a result of an external event beyond its reasonable
control, the consequences of which would have been
unavoidable despite all reasonable efforts to the contrary.
(iii) the third party segregates the assets of the depositary’s
clients from its own assets and from the assets of the
depositary in such a way that they can at any time be
The depositary shall also be liable to the AIF, or to the investors
clearly identified as belonging to clients of a particular
of the AIF, for all other losses suffered by them as a result of
depositary;
the depositary’s negligent or intentional failure to properly fulfil
its obligations pursuant to this Directive.
(iv) the third party does not make use of the assets without
the prior consent of the AIF or the AIFM acting on
13. The
depositary’s
liability
shall
not
be
affected
by
any
behalf of the AIF and prior notification to the
delegation referred to in paragraph 11.
depositary; and
Notwithstanding the first subparagraph of this paragraph, in
case of a loss of financial instruments held in custody by a
(v) the third party complies with the general obligations
third party pursuant to paragraph 11, the depositary may
and prohibitions set out in paragraphs 8 and 10.
discharge itself of liability if it can prove that:
Notwithstanding point (d)(ii) of the second subparagraph, where
(a) all requirements for the delegation of its custody tasks set
the law of a third country requires that certain financial
out in the second subparagraph of paragraph 11 are met;
instruments be held in custody by a local entity and no local
entities satisfy the delegation requirements laid down in that
point, the depositary may delegate its functions to such a
(b) a written contract between the depositary and the third
local entity only to the extent required by the law of the
party expressly transfers the liability of the depositary to
third country and only for as long as there are no local
that third party and makes it possible for the AIF or the
entities that satisfy the delegation requirements, subject to the
AIFM acting on behalf of the AIF to make a claim against
following requirements:
the third party in respect of the loss of financial instruments
or for the depositary to make such a claim on their behalf;
and
(a) the investors of the relevant AIF must be duly informed that
such delegation is required due to legal constraints in the
law of the third country and of the circumstances justifying
(c) a written contract between the depositary and the AIF or
the delegation, prior to their investment; and
the AIFM acting on behalf of the AIF, expressly allows a
discharge of the depositary’s liability and establishes the
objective reason to contract such a discharge.
(b) the AIF, or the AIFM on behalf of the AIF, must instruct the
depositary to delegate the custody of such financial
instruments to such local entity.
14. Further,
where
the
law
of
a
third
country
requires
that
certain financial instruments are held in custody by a local
entity and there are no local entities that satisfy the delegation
requirements laid down in point (d)(ii) of paragraph 11, the
The third party may, in turn, sub-delegate those functions,
depositary can discharge itself of liability provided that the
subject to the same requirements. In such a case, paragraph
following conditions are met:
13 shall apply mutatis mutandis to the relevant parties.
(a) the rules or instruments of incorporation of the AIF
For the purposes of this paragraph, the provision of services as
concerned expressly allow for such a discharge under the
specified by Directive 98/26/EC by securities settlement systems
conditions set out in this paragraph;
as designated for the purposes of that Directive or the provision
of similar services by third-country securities settlement systems
shall not be considered a delegation of its custody functions.
(b) the investors of the relevant AIF have been duly informed of
that discharge and of the circumstances justifying the
discharge prior to their investment;
12. The depositary shall be liable to the AIF or to the
investors of the AIF, for the loss by the depositary or a third
party to whom the custody of financial instruments held in
(c) the AIF or the AIFM on behalf of the AIF instructed the
custody in accordance with point (a) of paragraph 8 has been
depositary to delegate the custody of such financial
delegated.
instruments to a local entity;

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(d) there is a written contract between the depositary and the
(e) the segregation obligation pursuant to point (d)(iii) of
AIF or the AIFM acting on behalf of the AIF, which
paragraph 11;
expressly allows such a discharge; and
(f) the conditions subject to which and circumstances in which
(e) there is a written contract between the depositary and the
financial instruments held in custody are to be considered as
third party that expressly transfers the liability of the
lost;
depositary to that local entity and makes it possible for
the AIF or the AIFM acting on behalf of the AIF to make
a claim against that local entity in respect of the loss of
(g) what is to be understood by external events beyond
financial instruments or for the depositary to make such a
reasonable control, the consequences of which would have
claim on their behalf.
been unavoidable despite all reasonable efforts to the
contrary pursuant to paragraph 12;
15. Liability
to
the
investors
of
the
AIF
may
be
invoked
directly or indirectly through the AIFM, depending on the
(h) the conditions subject to which and circumstances in which
legal nature of the relationship between the depositary, the
there is an objective reason to contract a discharge pursuant
AIFM and the investors.
to paragraph 13.
16. The
depositary
shall
make
available
to
its
competent
authorities, on request, all information which it has obtained
CHAPTER IV
while performing its duties and that may be necessary for the
TRANSPARENCY REQUIREMENTS
competent authorities of the AIF or the AIFM. If the competent
authorities of the AIF or the AIFM are different from those of
Article 22
the depositary, the competent authorities of the depositary shall
Annual report
share the information received without delay with the
competent authorities of the AIF and the AIFM.
1. An
AIFM
shall,
for
each
of
the
EU
AIFs
it
manages
and
for
each of the AIFs it markets in the Union, make available an
annual report for each financial year no later than 6 months
17. The
Commission
shall
adopt,
by
means
of
delegated
acts following the end of the financial year. The annual report shall
in accordance with Article 56 and subject to the conditions of
be provided to investors on request. The annual report shall be
Articles 57 and 58, measures specifying:
made available to the competent authorities of the home
Member State of the AIFM, and, where applicable, the home
Member State of the AIF.
(a) the particulars that need to be included in the written
contract referred to in paragraph 2;
Where the AIF is required to make public an annual financial
report in accordance with Directive 2004/109/EC only such
(b) general criteria for assessing whether the prudential regu
additional information referred to in paragraph 2 needs to be
lation and supervision of third countries as referred to in
provided to investors on request, either separately or as an
point (b) of paragraph 6 have the same effect as Union law
additional part of the annual financial report. In the latter
and are effectively enforced;
case the annual financial report shall be made public no later
than 4 months following the end of the financial year.
(c) the conditions for performing the depositary functions
pursuant to paragraphs 7, 8 and 9, including:
2. The
annual
report
shall
at
least
contain
the
following:
(i) the type of financial instruments to be included in the
scope of the depositary’s custody duties in accordance
(a) a balance-sheet or a statement of assets and liabilities;
with point (a) of paragraph 8;
(b) an income and expenditure account for the financial year;
(ii) the conditions subject to which the depositary is able to
exercise its custody duties over financial instruments
registered with a central depositary; and
(c) a report on the activities of the financial year;
(iii) the conditions subject to which the depositary is to
(d) any material changes in the information listed in Article 23
safekeep the financial instruments issued in a nomi
during the financial year covered by the report;
native form and registered with an issuer or a registrar,
in accordance with point (b) of paragraph 8;
(e) the total amount of remuneration for the financial year,
split into fixed and variable remuneration, paid by the
(d) the due diligence duties of depositaries pursuant to point (c)
AIFM to its staff, and number of beneficiaries, and, where
of paragraph 11;
relevant, carried interest paid by the AIF;

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(f) the aggregate amount of remuneration broken down by
(b) a description of the procedures by which the AIF may
senior management and members of staff of the AIFM
change its investment strategy or investment policy, or
whose actions have a material impact on the risk profile
both;
of the AIF.
(c) a description of the main legal implications of the
contractual relationship entered into for the purpose of
3. The
accounting
information
given
in
the
annual
report
investment, including information on jurisdiction, on the
shall be prepared in accordance with the accounting standards
applicable law and on the existence or not of any legal
of the home Member State of the AIF or in accordance with the
instruments providing for the recognition and enforcement
accounting standards of the third country where the AIF is
of judgments in the territory where the AIF is established;
established and with the accounting rules laid down in the
AIF rules or instruments of incorporation.
(d) the identity of the AIFM, the AIF’s depositary, auditor and
any other service providers and a description of their duties
and the investors’ rights;
The accounting information given in the annual report shall be
audited by one or more persons empowered by law to audit
accounts in accordance with Directive 2006/43/EC of the
(e) a description of how the AIFM is complying with the
European Parliament and of the Council of 17 May 2006 on
requirements of Article 9(7);
statutory audits of annual accounts and consolidated
accounts ( 1 ). The auditor’s report, including any qualifications,
shall be reproduced in full in the annual report.
(f) a description of any delegated management function as
referred to in Annex I by the AIFM and of any safe-
keeping function delegated by the depositary, the identifi
cation of the delegate and any conflicts of interest that may
By way of derogation from the second subparagraph, Member
arise from such delegations;
States may permit AIFMs marketing non-EU AIFs to subject the
annual reports of those AIFs to an audit meeting international
auditing standards in force in the country where the AIF has its
(g) a description of the AIF’s valuation procedure and of the
registered office.
pricing methodology for valuing assets, including the
methods used in valuing hard-to-value assets in accordance
with Article 19;
4. The
Commission
shall
adopt,
by
means
of
delegated
acts
in accordance with Article 56 and subject to the conditions of
(h) a description of the AIF’s liquidity risk management,
Articles 57 and 58, measures specifying the content and format
including the redemption rights both in normal and in
of the annual report. Those measures shall be adapted to the
exceptional circumstances, and the existing redemption
type of AIF to which they apply.
arrangements with investors;
(i) a
description
of
all
fees,
charges
and
expenses
and
of
the
Article 23
maximum amounts thereof which are directly or indirectly
borne by investors;
Disclosure to investors
1. AIFMs
shall
for
each
of
the
EU
AIFs
that
they
manage
and
for each of the AIFs that they market in the Union make
(j) a description of how the AIFM ensures a fair treatment of
available to AIF investors, in accordance with the AIF rules or
investors and, whenever an investor obtains preferential
instruments of incorporation, the following information before
treatment or the right to obtain preferential treatment, a
they invest in the AIF, as well as any material changes thereof:
description of that preferential treatment, the type of
investors who obtain such preferential treatment and,
where relevant, their legal or economic links with the AIF
or AIFM;
(a) a description of the investment strategy and objectives of
the AIF, information on where any master AIF is estab
lished and where the underlying funds are established if
(k) the latest annual report referred to in Article 22;
the AIF is a fund of funds, a description of the types of
assets in which the AIF may invest, the techniques it may
(l) the procedure and conditions for the issue and sale of units
employ and all associated risks, any applicable investment
or shares;
restrictions, the circumstances in which the AIF may use
leverage, the types and sources of leverage permitted and
the associated risks, any restrictions on the use of leverage
(m) the latest net asset value of the AIF or the latest market
and any collateral and asset reuse arrangements, and the
price of the unit or share of the AIF, in accordance with
maximum level of leverage which the AIFM are entitled to
Article 19;
employ on behalf of the AIF;
( 1 ) OJ L 157, 9.6.2006, p. 87.
(n) where available, the historical performance of the AIF;

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(o) the identity of the prime broker and a description of any
gations of AIFMs referred to in paragraphs 4 and 5, including
material arrangements of the AIF with its prime brokers
the frequency of the disclosure referred to in paragraph 5.
and the way the conflicts of interest in relation thereto are
Those measures shall be adapted to the type of AIFM to
managed and the provision in the contract with the
which they apply.
depositary on the possibility of transfer and reuse of AIF
assets, and information about any transfer of liability to the
prime broker that may exist;
Article 24
Reporting obligations to competent authorities
(p) a description of how and when the information required
1. An
AIFM
shall
regularly
report
to
the
competent
under paragraphs 4 and 5 will be disclosed.
authorities of its home Member State on the principal
markets and instruments in which it trades on behalf of the
AIFs it manages.
2. The
AIFM
shall
inform
the
investors
before
they
invest
in
the AIF of any arrangement made by the depositary to
contractually discharge itself of liability in accordance with
It shall provide information on the main instruments in which
Article 21(13). The AIFM shall also inform investors of any
it is trading, on markets of which it is a member or where it
changes with respect to depositary liability without delay.
actively trades, and on the principal exposures and most
important concentrations of each of the AIFs it manages.
3. Where
the
AIF
is
required
to
publish
a
prospectus
in
accordance with Directive 2003/71/EC or in accordance with
2. An
AIFM
shall,
for
each
of
the
EU
AIFs
it
manages
and
for
national law, only such information referred to in paragraphs 1
each of the AIFs it markets in the Union, provide the following
and 2 which is in addition to that contained in the prospectus
to the competent authorities of its home Member State:
needs to be disclosed separately or as additional information in
the prospectus.
(a) the percentage of the AIF’s assets which are subject to
4. AIFMs
shall,
for
each
of
the
EU
AIFs
that
they
manage
and
special arrangements arising from their illiquid nature;
for each of the AIFs that they market in the Union, periodically
disclose to investors:
(b) any new arrangements for managing the liquidity of the
AIF;
(a) the percentage of the AIF’s assets which are subject to
special arrangements arising from their illiquid nature;
(c) the current risk profile of the AIF and the risk management
systems employed by the AIFM to manage the market risk,
(b) any new arrangements for managing the liquidity of the
liquidity risk, counterparty risk and other risks including
AIF;
operational risk;
(c) the current risk profile of the AIF and the risk management
(d) information on the main categories of assets in which the
systems employed by the AIFM to manage those risks.
AIF invested; and
5. AIFMs managing EU AIFs employing leverage or (e) the results of the stress tests performed in accordance with
marketing in the Union AIFs employing leverage shall, for
point (b) of Article 15(3) and the second subparagraph of
each such AIF disclose, on a regular basis:
Article 16(1).
(a) any changes to the maximum level of leverage which the
3. The
AIFM
shall,
on
request,
provide
the
following
AIFM may employ on behalf of the AIF as well as any right
documents to the competent authorities of its home Member
of the reuse of collateral or any guarantee granted under the
State:
leveraging arrangement;
(a) an annual report of each EU AIF managed by the AIFM and
(b) the total amount of leverage employed by that AIF.
of each AIF marketed by it in the Union, for each financial
year, in accordance with Article 22(1);
6. The
Commission
shall
adopt,
by
means
of
delegated
acts
in accordance with Article 56 and subject to the conditions of
(b) for the end of each quarter a detailed list of all AIFs which
Articles 57 and 58, measures specifying the disclosure obli
the AIFM manages.

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4. An
AIFM
managing
AIFs
employing
leverage
on
a
CHAPTER V
substantial basis shall make available information about the
overall level of leverage employed by each AIF it manages, a
AIFMs MANAGING SPECIFIC TYPES OF AIF
break-down between leverage arising from borrowing of cash or
SECTION 1
securities and leverage embedded in financial derivatives and the
extent to which the AIF’s assets have been reused under
AIFMs managing leveraged AIFs
leveraging arrangements to the competent authorities of its
Article 25
home Member State.
Use of information by competent authorities, supervisory
cooperation and limits to leverage
1. Member
States
shall
ensure
that
the
competent
authorities
That information shall include the identity of the five largest
of the home Member State of the AIFM use the information to
sources of borrowed cash or securities for each of the AIFs
be gathered under Article 24 for the purposes of identifying the
managed by the AIFM, and the amounts of leverage received
extent to which the use of leverage contributes to the build-up
from each of those sources for each of those AIFs.
of systemic risk in the financial system, risks of disorderly
markets or risks to the long-term growth of the economy.
For non-EU AIFMs, the reporting obligations referred to in this
2. The
competent
authorities
of
the
home
Member
State
of
paragraph are limited to EU AIFs managed by them and non-EU
the AIFM shall ensure that all information gathered under
AIFs marketed by them in the Union.
Article 24 in respect of all AIFMs that they supervise and the
information gathered under Article 7 is made available to
competent authorities of other relevant Member States, ESMA
and the ESRB by means of the procedures set out in Article 50
on supervisory cooperation. They shall, without delay, also
5. Where
necessary
for
the
effective
monitoring
of
systemic provide information by means of those procedures, and
risk, the competent authorities of the home Member State may
bilaterally to the competent authorities of other Member
require information in addition to that described in this Article,
States directly concerned, if an AIFM under their responsibility,
on a periodic as well as on an ad-hoc basis. The competent
or AIF managed by that AIFM could potentially constitute an
authorities shall inform ESMA about the additional information
important source of counterparty risk to a credit institution or
requirements.
other systemically relevant institutions in other Member States.
3. The AIFM shall demonstrate that the leverage limits set by
In exceptional circumstances and where required in order to
it for each AIF it manages are reasonable and that it complies
ensure the stability and integrity of the financial system, or to
with those limits at all times. The competent authorities shall
promote long-term sustainable growth, ESMA may request the
assess the risks that the use of leverage by an AIFM with respect
competent authorities of the home Member State to impose
to the AIFs it manages could entail, and, where deemed
additional reporting requirements.
necessary in order to ensure the stability and integrity of the
financial system, the competent authorities of the home
Member State of the AIFM, after having notified ESMA, the
ESRB and the competent authorities of the relevant AIF, shall
6. The
Commission
shall
adopt,
by
means
of
delegated
acts impose limits to the level of leverage that an AIFM are entitled
in accordance with Article 56 and subject to the conditions of
to employ or other restrictions on the management of the AIF
Articles 57 and 58, measures specifying:
with respect to the AIFs under its management to limit the
extent to which the use of leverage contributes to the build
up of systemic risk in the financial system or risks of disorderly
markets. The competent authorities of the home Member State
of the AIFM shall duly inform ESMA, the ESRB and the
(a) when leverage is to be considered to be employed on a
competent authorities of the AIF, of actions taken in this
substantial basis for the purposes of paragraph 4; and
respect, through the procedures set out in Article 50.
4. The
notification
referred
to
in
paragraph
3
shall
be
made
(b) the obligations to report and provide information provided
not less than 10 working days before the proposed measure is
for in this Article.
intended to take effect or to be renewed. The notification shall
include details of the proposed measure, the reasons for the
measure and when the measure is intended to take effect. In
exceptional circumstances, the competent authorities of the
home Member State of the AIFM may decide that the
Those measures shall take into account the need to avoid an
proposed measure takes effect within the period referred to in
excessive administrative burden on competent authorities.
the first sentence.

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5. ESMA
shall
perform
a
facilitation
and
coordination
role, (b) AIFMs cooperating with one or more other AIFMs on the
and, in particular, shall try to ensure that a consistent approach
basis of an agreement pursuant to which the AIFs managed
is taken by competent authorities, in relation to measures
by those AIFMs jointly, acquire control of a non-listed
proposed by competent authorities under paragraph 3.
company in accordance with paragraph 5.
2. This
Section
shall
not
apply
where
the
non-listed
6. After
receiving
the
notification
referred
to
in
paragraph
3, companies concerned are:
ESMA shall issue advice to the competent authorities of the
home Member State of the AIFM about the measure that is
proposed or taken. The advice may, in particular, address
(a) small and medium-sized enterprises within the meaning of
whether the conditions for taking action appear to be met,
Article 2(1) of the Annex to Commission Recommendation
whether the measures are appropriate and the duration of the
2003/361/EC of 6 May 2003 concerning the definition of
measures.
micro, small and medium-sized enterprises ( 1 ); or
7. On the basis of the information received in accordance
(b) special purpose vehicles with the purpose of purchasing,
with paragraph 2, and after taking into account any advice of
holding or administrating real estate.
the ESRB, ESMA may determine that the leverage employed by
an AIFM, or by a group of AIFMs, poses a substantial risk to the
stability and integrity of the financial system and may issue
3. Without prejudice to paragraphs 1 and 2 of this Article,
advice to competent authorities specifying the remedial
Article 27(1) shall also apply to AIFMs managing AIFs that
measures to be taken, including limits to the level of leverage,
acquire a non-controlling participation in a non-listed company.
which that AIFM, or that group of AIFMs, are entitled to
employ. ESMA shall immediately inform the competent
authorities concerned, the ESRB and the Commission of any
4. Article 28(1), (2) and (3) and Article 30 shall apply also to
such determination.
AIFMs managing AIFs that acquire control over issuers. For the
purposes of those Articles, paragraphs 1 and 2 of this Article
shall apply mutatis mutandis.
8. If
a
competent
authority
proposes
to
take
action
contrary
to ESMA’s advice referred to in paragraph 6 or 7 it shall inform
5. For
the
purpose
of
this
Section,
for
non-listed
companies,
ESMA, stating its reasons. ESMA may publish the fact that a
control shall mean more than 50 % of the voting rights of the
competent authority does not comply or intend to comply with
companies.
its advice. ESMA may also decide, on a case-by-case basis, to
publish the reasons provided by the competent authority for
not complying with its advice. The competent authorities
When calculating the percentage of voting rights held by the
concerned shall receive advance notice about such a publication.
relevant AIF, in addition to the voting rights held directly by the
relevant AIF, the voting rights of the following shall be taken
into account, subject to control as referred to in the first
subparagraph being established:
9. The
Commission
shall
adopt,
by
means
of
delegated
acts
in accordance with Article 56 and subject to the conditions of
Articles 57 and 58, measures setting out principles specifying
the circumstances in which competent authorities apply the
(a) an undertaking controlled by the AIF; and
provisions set out in paragraph 3, taking into account
different strategies of AIFs, different market conditions in
which AIFs operate and possible pro-cyclical effects of
(b) a natural or legal person acting in its own name but on
applying those provisions.
behalf of the AIF or on behalf of an undertaking controlled

by the AIF.
SECTION 2
The percentage of voting rights shall be calculated on the basis
of all the shares to which voting rights are attached even if the
Obligations for AIFMs managing AIFs which acquire control
exercise thereof is suspended.
of non-listed companies and issuers
Article 26
Notwithstanding point (i) of Article 4(1), for the purpose of
Scope
Article 28(1), (2) and (3) and Article 30 in regard to issuers
1. This
Section
shall
apply
to
the
following:
control shall be determined in accordance with Article 5(3) of
Directive 2004/25/EC.
(a) AIFMs managing one or more AIFs which either individually
6. This
Section
shall
apply
subject
to
the
conditions
and
or jointly on the basis of an agreement aimed at acquiring
restrictions set out in Article 6 of Directive 2002/14/EC.
control, acquire control of a non-listed company in
accordance with paragraph 5;
( 1 ) OJ L 124, 20.5.2003, p. 36.

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7. This
Section
shall
apply
without
prejudice
to
any
stricter 5.
The notifications referred to in paragraphs 1, 2 and 3 shall
rules adopted by Member States with respect to the acquisition
be made as soon as possible, but no later than 10 working days
of holdings in issuers and non-listed companies in their terri
after the date on which the AIF has reached, exceeded or fallen
tories.
below the relevant threshold or has acquired control over the
non-listed company.
Article 27
Notification of the acquisition of major holdings and
Article 28
control of non-listed companies
Disclosure in case of acquisition of control
1. Member
States
shall
require
that
when
an
AIF
acquires, 1. Member
States
shall
require
that
when
an
AIF
acquires,
disposes of or holds shares of a non-listed company, the AIFM
individually or jointly, control of a non-listed company or an
managing such an AIF notify the competent authorities of its
issuer pursuant to Article 26(1), in conjunction with paragraph
home Member State of the proportion of voting rights of the
5 of that Article, the AIFM managing such AIF shall make the
non-listed company held by the AIF any time when that
information referred to in paragraph 2 of this Article available
proportion reaches, exceeds or falls below the thresholds of
to:
10 %, 20 %, 30 %, 50 % and 75 %.
(a) the company concerned;
2. Member
States
shall
require
that
when
an
AIF
acquires,
individually or jointly, control over a non-listed company
pursuant to Article 26(1), in conjunction with paragraph 5 of
(b) the shareholders of the company of which the identities and
that Article, the AIFM managing such an AIF notify the
addresses are available to the AIFM or can be made available
following of the acquisition of control by the AIF:
by the company or through a register to which the AIFM
has or can obtain access; and
(a) the non-listed company;
(c) the competent authorities of the home Member State of the
AIFM.
(b) the shareholders of which the identities and addresses are
available to the AIFM or can be made available by the non-
listed company or through a register to which the AIFM has
Member States may require that the information referred to in
or can obtain access; and
paragraph 2 is also made available to the competent authorities
of the non-listed company which the Member States may
(c) the competent authorities of the home Member State of the
designate to that effect.
AIFM.
2. The
AIFM
shall
make
available:
3. The
notification
required
under
paragraph
2
shall
contain
the following additional information:
(a) the identity of the AIFMs which either individually or in
agreement with other AIFMs manage the AIFs that have
(a) the resulting situation in terms of voting rights;
acquired control;
(b) the conditions subject to which control was acquired,
(b) the policy for preventing and managing conflicts of interest,
including information about the identity of the different
in particular between the AIFM, the AIF and the company,
shareholders involved, any natural person or legal entity
including information about the specific safeguards estab
entitled to exercise voting rights on their behalf and, if
lished to ensure that any agreement between the AIFM
applicable, the chain of undertakings through which
and/or the AIF and the company is concluded at arm’s
voting rights are effectively held;
length; and
(c) the date on which control was acquired.
(c) the policy for external and internal communication relating
to the company in particular as regards employees.
4. In its notification to the non-listed company, the AIFM
shall request the board of directors of the company to inform
3. In
its
notification
to
the
company
pursuant
to
point
(a)
of
the employees’ representatives or, where there are none, the
paragraph 1, the AIFM shall request the board of directors of
employees themselves, without undue delay of the acquisition
the company to inform the employees’ representatives or, where
of control by the AIF managed by the AIFM and of the
there are none, the employees themselves, without undue delay
information referred to in paragraph 3. The AIFM shall use
of the information referred to in paragraph 1. The AIFM shall
its best efforts to ensure that the employees’ representatives
use its best efforts to ensure that the employees’ representatives
or, where there are none, the employees themselves, are duly
or, where there are none, the employees themselves, are duly
informed by the board of directors in accordance with this
informed by the board of directors in accordance with this
Article.
Article.

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4. Member
States
shall
require
that
when
an
AIF
acquires, company’s business representing the situation at the end of the
individually or jointly, control of a non-listed company
period covered by the annual report. The report shall also give
pursuant to Article 26(1), in conjunction with paragraph 5 of
an indication of:
that Article, the AIFM managing such AIF ensure that the AIF,
or the AIFM acting on behalf of the AIF, disclose its intentions
with regard to the future business of the non-listed company
(a) any important events that have occurred since the end of
and the likely repercussions on employment, including any
the financial year;
material change in the conditions of employment, to:
(b) the company’s likely future development; and
(a) the non-listed company; and
(c) the information concerning acquisitions of own shares
prescribed by Article 22(2) of Council Directive
(b) the shareholders of the non-listed company of which the
77/91/EEC ( 1 ).
identities and addresses are available to the AIFM or can be
made available by the non-listed company or through a
register to which the AIFM has or can obtain access.
3. The
AIFM
managing
the
relevant
AIF
shall
either:
(a) request and use its best efforts to ensure that the board of
In addition, the AIFM managing the relevant AIF shall request
directors of the non-listed company makes available the
and use its best efforts to ensure that the board of directors of
information referred to in point (b) of paragraph 1
the non-listed company makes available the information set out
relating to the company concerned to the employees’ repre
in the first subparagraph to the employees’ representatives or,
sentatives of the company concerned or, where there are
where there are none, the employees themselves, of the non-
none, to the employees themselves within the period
listed company.
referred to in Article 22(1); or
5. Member
States
shall
require
that
when
an
AIF
acquires (b) make available the information referred to in point (a) of
control of a non-listed company pursuant to Article 26(1), in
paragraph 1 to the investors of the AIF, in so far as already
conjunction with paragraph 5 of that Article, the AIFM
available, within the period referred to in Article 22(1) and,
managing such an AIF provide the competent authorities of
in any event, no later than the date on which the annual
its home Member State and the AIF’s investors with information
report of the non-listed company is drawn up in accordance
on the financing of the acquisition.
with the national applicable law.
Article 30
Article 29
Asset stripping
Specific provisions regarding the annual report of AIFs
exercising control of non-listed companies
1. Member
States
shall
require
that
when
an
AIF,
individually
or jointly, acquires control of a non-listed company or an issuer
1. Member
States
shall
require
that
when
an
AIF
acquires, pursuant to Article 26(1), in conjunction with paragraph 5 of
individually or jointly, control of a non-listed company
that Article, the AIFM managing such an AIF shall for a period
pursuant to Article 26(1), in conjunction with paragraph 5 of
of 24 months following the acquisition of control of the
that Article, the AIFM managing such an AIF shall either:
company by the AIF:
(a) request and use its best efforts to ensure that the annual
(a) not be allowed to facilitate, support or instruct any
report of the non-listed company drawn up in accordance
distribution, capital reduction, share redemption and/or
with paragraph 2 is made available by the board of directors
acquisition of own shares by the company as described in
of the company to the employees’ representatives or, where
paragraph 2;
there are none, to the employees themselves within the
period such annual report has to be drawn up in accordance
with the national applicable law; or
(b) in so far as the AIFM is authorised to vote on behalf of the
AIF at the meetings of the governing bodies of the
company, not vote in favour of a distribution, capital
reduction, share redemption and/or acquisition of own
(b) for each such AIF include in the annual report provided for
shares by the company as described in paragraph 2; and
in Article 22 the information referred to in paragraph 2
relating to the relevant non-listed company.
(c) in any event use its best efforts to prevent distributions,
capital reductions, share redemptions and/or the acquisition
2. The
additional
information
to
be
included
in
the
annual
of own shares by the company as described in paragraph 2.
report of the company or the AIF, in accordance with paragraph
1, shall include at least a fair review of the development of the
( 1 ) OJ L 26, 31.1.1977, p. 1.

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Union L
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2. The
obligations
imposed
on
AIFMs
pursuant
to
paragraph Where the EU AIF is a feeder AIF the right to market referred to
1 shall relate to the following:
in the first subparagraph is subject to the condition that the
master AIF is also an EU AIF which is managed by an auth
orised EU AIFM.
(a) any distribution to shareholders made when on the closing
date of the last financial year the net assets as set out in the
company’s annual accounts are, or following such a
2. The
AIFM
shall
submit
a
notification
to
the
competent
distribution would become, lower than the amount of the
authorities of its home Member State in respect of each EU
subscribed capital plus those reserves which may be not
AIF that it intends to market.
distributed under the law or the statutes, on the under
standing that where the uncalled part of the subscribed
capital is not included in the assets shown in the balance
sheet, this amount shall be deducted from the amount of
That notification shall comprise the documentation and
subscribed capital;
information set out in Annex III.
(b) any distribution to shareholders the amount of which would
3. Within
20
working
days
following
receipt
of
a
complete
exceed the amount of the profits at the end of the last
notification file pursuant to paragraph 2, the competent
financial year plus any profits brought forward and sums
authorities of the home Member State of the AIFM shall
drawn from reserves available for this purpose, less any
inform the AIFM whether it may start marketing the AIF
losses brought forward and sums placed to reserve in
identified in the notification referred to in paragraph 2. The
accordance with the law or the statutes;
competent authorities of the home Member State of the AIFM
shall prevent the marketing of the AIF only if the AIFM’s
management of the AIF does not or will not comply with
(c) to the extent that acquisitions of own shares are permitted,
this Directive or the AIFM otherwise does not or will not
the acquisitions by the company, including shares previously
comply with this Directive. In the case of a positive decision,
acquired by the company and held by it, and shares
the AIFM may start marketing the AIF in its home Member
acquired by a person acting in his own name but on the
State from the date of the notification by the competent
company’s behalf, that would have the effect of reducing the
authorities to that effect.
net assets below the amount mentioned in point (a).
In so far as they are different, the competent authorities of the
3. For
the
purposes
of
paragraph
2:
home Member State of the AIFM shall also inform the
competent authorities of the AIF that the AIFM may start
marketing units or shares of the AIF.
(a) the term ‘distribution’ referred to in points (a) and (b) of
paragraph 2 shall include, in particular, the payment of
dividends and of interest relating to shares;
4. In the event of a material change to any of the particulars
communicated in accordance with paragraph 2, the AIFM shall
give written notice of that change to the competent authorities
(b) the provisions on capital reductions shall not apply on a
of its home Member State at least 1 month before imple
reduction in the subscribed capital, the purpose of which is
menting the change as regards any changes planned by the
to offset losses incurred or to include sums of money in a
AIFM, or immediately after an unplanned change has occurred.
non-distributable reserve provided that, following that
operation, the amount of such reserve is not more than
10 % of the reduced subscribed capital; and
If, pursuant to a planned change, the AIFM’s management of the
AIF would no longer comply with this Directive or the AIFM
would otherwise no longer comply with this Directive, the
(c) the restriction set out in point (c) of paragraph 2 shall be
relevant competent authorities shall inform the AIFM without
subject to points (b) to (h) of Article 20(1) of Directive
undue delay that it is not to implement the change.
77/91/EEC.
If a planned change is implemented notwithstanding the first
CHAPTER VI
and second subparagraphs or if an unplanned change has taken
place pursuant to which the AIFM’s management of the AIF no
RIGHTS OF EU AIFMs TO MARKET AND MANAGE EU AIFs IN
longer complies with this Directive or the AIFM otherwise no
THE UNION
longer complies with this Directive, the competent authorities
Article 31
of the home Member State of the AIFM shall take all due
measures in accordance with Article 46, including, if necessary,
Marketing of units or shares of EU AIFs in the home
the express prohibition of marketing of the AIF.
Member State of the AIFM
1. Member
States
shall
ensure
that
an
authorised
EU
AIFM
may market units or shares of any EU AIF that it manages to
5. In
order
to
ensure
uniform
conditions
of
application
of
professional investors in the home Member State of the AIFM as
this Article, ESMA may develop draft implementing technical
soon as the conditions laid down in this Article are met.
standards to determine:

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L 174/40
EN
Official Journal of the European Union
1.7.2011
(a) the form and content of a model for the notification letter
In so far as they are different, the competent authorities of the
referred to in paragraph 2; and
home Member State of the AIFM shall also inform the
competent authorities of the AIF that the AIFM may start
marketing the units or shares of the AIF in the host Member
(b) the form of the written notice referred to in paragraph 4.
State of the AIFM.
Power is conferred on the Commission to adopt the imple
5. Arrangements
referred
to
in
point
(h)
of
Annex
IV
shall
be
menting technical standards referred to in the first subparagraph
subject to the laws and supervision of the host Member State of
in accordance with Article 15 of Regulation (EU)
the AIFM.
No 1095/2010.
6. Member States shall ensure that the notification letter by
6. Without
prejudice
to
Article
43(1),
Member
States
shall the AIFM referred to in paragraph 2 and the statement referred
require that AIFs managed and marketed by AIFMs be marketed
to in paragraph 3 are provided in a language customary in the
only to professional investors.
sphere of international finance.
Article 32
Member States shall ensure that electronic transmission and
Marketing of units or shares of EU AIFs in Member States
filing of the documents referred to in paragraph 3 are
other than in the home Member State of the AIFM
accepted by their competent authorities.
1. Member
States
shall
ensure
that
an
authorised
EU
AIFM
may market units or shares of an EU AIF that it manages to
7. In the event of a material change to any of the particulars
professional investors in another Member State than the home
communicated in accordance with paragraph 2, the AIFM shall
Member State of the AIFM as soon as the conditions laid down
give written notice of that change to the competent authorities
in this Article are met.
of its home Member State at least 1 month before imple
menting a planned change, or immediately after an unplanned
change has occurred.
Where the EU AIF is a feeder AIF the right to market referred to
in the first subparagraph is subject to the condition that the
master AIF is also an EU AIF and is managed by an authorised
EU AIFM.
If, pursuant to a planned change, the AIFM’s management of the
AIF would no longer comply with this Directive or the AIFM
would otherwise no longer comply with this Directive, the
relevant competent authorities shall inform the AIFM without
2. The
AIFM
shall
submit
a
notification
to
the
competent undue delay that it is not to implement the change.
authorities of its home Member State in respect of each EU
AIF that it intends to market.
If a planned change is implemented notwithstanding the first
That notification shall comprise the documentation and
and second subparagraphs or if an unplanned change has taken
information set out in Annex IV.
place pursuant to which the AIFM’s management of the AIF
would no longer comply with this Directive or the AIFM
otherwise would no longer comply with this Directive, the
3. The
competent
authorities
of
the
home
Member
State
of competent authorities of the home Member State of the AIFM
the AIFM shall, no later than 20 working days after the date of
shall take all due measures in accordance with Article 46,
receipt of the complete notification file referred to in paragraph
including, if necessary, the express prohibition of marketing
2, transmit the complete notification file to the competent
of the AIF.
authorities of the Member States where it is intended that the
AIF be marketed. Such transmission shall occur only if the
AIFM’s management of the AIF complies with and will
If the changes are acceptable because they do not affect the
continue to comply with this Directive and if the AIFM
compliance of the AIFM’s management of the AIF with this
otherwise complies with this Directive.
Directive, or the compliance by the AIFM with this Directive
otherwise, the competent authorities of the home Member State
of the AIFM shall, without delay, inform the competent
The competent authorities of the home Member State of the
authorities of the host Member State of the AIFM of those
AIFM shall enclose a statement to the effect that the AIFM
changes.
concerned is authorised to manage AIFs with a particular
investment strategy.
8. In
order
to
ensure
uniform
conditions
of
application
of
this Article, ESMA may develop draft implementing technical
4. Upon
transmission
of
the
notification
file,
the
competent standards to determine:
authorities of the home Member State of the AIFM shall,
without delay, notify the AIFM about the transmission. The
AIFM may start marketing the AIF in the host Member State
(a) the form and content of a model for the notification letter
of the AIFM as of the date of that notification.
referred to in paragraph 2;

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European
Union L
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(b) the form and content of a model for the statement referred
The competent authorities of the home Member State of the
to in paragraph 3;
AIFM shall enclose a statement to the effect that the AIFM
concerned is authorised by them.
(c) the form of the transmission referred to in paragraph 3; and
The competent authorities of the home Member State of the
(d) the form of the written notice referred to in paragraph 7.
AIFM shall immediately notify the AIFM about the transmission.
Power is conferred on the Commission to adopt the imple
menting technical standards referred to in the first subparagraph
Upon receipt of the transmission notification the AIFM may
in accordance with Article 15 of Regulation (EU) No
start to provide its services in its host Member State.
1095/2010.
9. Without
prejudice
to
Article
43(1),
Member
States
shall 5. The
host
Member
State
of
the
AIFM
shall
not
impose
any
require that the AIFs managed and marketed by the AIFM be
additional requirements on the AIFM concerned in respect of
marketed only to professional investors.
the matters covered by this Directive.
Article 33
6. In
the
event
of
a
change
to
any
of
the
information
Conditions for managing EU AIFs established in other
communicated in accordance with paragraph 2, and, where
Member States
relevant, paragraph 3, an AIFM shall give written notice of
1. Member
States
shall
ensure
that
an
authorised
EU
AIFM that change to the competent authorities of its home Member
may manage EU AIFs established in another Member State
State at least 1 month before implementing planned changes, or
either directly or by establishing a branch, provided that the
immediately after an unplanned change has occurred.
AIFM is authorised to manage that type of AIF.
If, pursuant to a planned change, the AIFM’s management of the
2. An
AIFM
intending
to
manage
EU
AIFs
established
in AIF would no longer comply with this Directive or the AIFM
another Member State for the first time shall communicate
the following information to the competent authorities of its
would otherwise no longer comply with this Directive, the
home Member State:
competent authorities of the home Member State of the AIFM
shall inform the AIFM without undue delay that it is not to
implement the change.
(a) the Member State in which it intends to manage AIFs
directly or establish a branch;
If a planned change is implemented notwithstanding the first
(b) a programme of operations stating in particular the services
and second subparagraphs or if an unplanned change has taken
which it intends to perform and identifying the AIFs it
place pursuant to which the AIFM’s management of the AIF
intends to manage.
would no longer comply with this Directive or the AIFM
otherwise would no longer comply with this Directive, the
competent authorities of the home Member State of the AIFM
3. If
the
AIFM
intends
to
establish
a
branch,
it
shall
provide shall take all due measures in accordance with Article 46.
the following information in addition to that referred to in
paragraph 2:
If the changes are acceptable because they do not affect the
(a) the organisational structure of the branch;
compliance of the AIFM’s management of the AIF with this
Directive, or the compliance by the AIFM with this Directive
otherwise, the competent authorities of the home Member State
(b) the address in the home Member State of the AIF from
of the AIFM shall, without undue delay, inform the competent
which documents may be obtained;
authorities of the host Member States of the AIFM of those
changes.
(c) the names and contact details of the persons responsible for
the management of the branch.
7. In
order
to
ensure
consistent
harmonisation
of
this
4. The
competent
authorities
of
the
home
Member
State
of Article, ESMA may develop draft regulatory technical
the AIFM shall, within 1 month of receiving the complete docu
standards to specify the information to be notified in
mentation in accordance with paragraph 2 or within 2 months
accordance with paragraphs 2 and 3.
of receiving the complete documentation in accordance with
paragraph 3, transmit the complete documentation to the
competent authorities of the host Member State of the AIFM.
Power is delegated to the Commission to adopt the regulatory
Such transmission shall occur only if the AIFM’s management
technical standards referred to in the first subparagraph in
of the AIF complies, and will continue to comply, with this
accordance with Articles 10 to 14 of Regulation (EU)
Directive and the AIFM otherwise complies with this Directive.
No 1095/2010.

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8. In
order
to
ensure
uniform
conditions
of
application
of subparagraph of Article 31(1) as soon as the conditions laid
this Article, ESMA may develop draft implementing technical
down in this Article are met.
standards to establish standard forms, templates and procedures
for the transmission of information in accordance with
paragraphs 2 and 3.
2. AIFMs
shall
comply
with
all
the
requirements
established
in this Directive, with the exception of Chapter VI. In addition
the following conditions shall be met:
Power is conferred on the Commission to adopt the imple
menting technical standards referred to in the first subparagraph
in accordance with Article 15 of Regulation (EU)
(a) appropriate cooperation arrangements must be in place
No 1095/2010.
between the competent authorities of the home Member
State of the AIFM and the supervisory authorities of the
third country where the non-EU AIF is established in
order to ensure at least an efficient exchange of information,
CHAPTER VII
taking into account Article 50(4), that allows the competent
SPECIFIC RULES IN RELATION TO THIRD COUNTRIES
authorities to carry out their duties in accordance with this
Directive;
Article 34
Conditions for EU AIFMs which manage non-EU AIFs
which are not marketed in Member States
(b) the third country where the non-EU AIF is established is not
listed as a Non-Cooperative Country and Territory by FATF;
1. Member
States
shall
ensure
that
an
authorised
EU
AIFM
may manage non-EU AIFs which are not marketed in the Union
provided that:
(c) the third country where the non-EU AIF is established has
signed an agreement with the home Member State of the
authorised AIFM and with each other Member State in
(a) the AIFM complies with all the requirements established in
which the units or shares of the non-EU AIF are intended
this Directive except for Article 21 and 22 in respect of
to be marketed, which fully complies with the standards laid
those AIFs; and
down in Article 26 of the OECD Model Tax Convention on
Income and on Capital and ensures an effective exchange of
information in tax matters, including any multilateral tax
(b) appropriate cooperation arrangements are in place between
agreements.
the competent authorities of the home Member State of the
AIFM and the supervisory authorities of the third country
where the non-EU AIF is established in order to ensure at
Where a competent authority of another Member State
least an efficient exchange of information that allows
disagrees with the assessment made on the application of
competent authorities of the home Member State of the
points (a) and (b) of the first subparagraph by the competent
AIFM to carry out their duties in accordance with this
authorities of the home Member State of the AIFM, the
Directive.
competent authorities concerned may refer the matter to the
ESMA which may act in accordance with the powers conferred
on it under Article 19 of Regulation (EU) No 1095/2010.
2. The
Commission
shall
adopt,
by
means
of
delegated
acts
in accordance with Article 56 and subject to the conditions of
Articles 57 and 58, measures regarding the cooperation
3. If
an
AIFM
intends
to
market
units
or
shares
of
non-EU
arrangements referred to in paragraph 1 in order to design a
AIFs in its home Member State, the AIFM shall submit a notifi
common framework to facilitate the establishment of those
cation to the competent authorities of its home Member State
cooperation arrangements with third countries.
in respect of each non-EU AIF that it intends to market.
That notification shall comprise the documentation and
3. In
order
to
ensure
uniform
application
of
this
Article, information set out in Annex III.
ESMA shall develop guidelines to determine the conditions of
application of the measures adopted by the Commission
regarding the cooperation arrangements referred to in
paragraph 1.
4. No
later
than
20
working
days
after
receipt
of
a
complete
notification pursuant to paragraph 3, the competent authorities
of the home Member State of the AIFM shall inform the AIFM
whether it may start marketing the AIF identified in the notifi
Article 35
cation referred to in paragraph 3 in its territory. The competent
Conditions for the marketing in the Union with a passport
authorities of the home Member State of the AIFM shall prevent
of a non-EU AIF managed by an EU AIFM
the marketing of the AIF only if the AIFM’s management of the
AIF does not or will not comply with this Directive or the AIFM
1. Member
States
shall
ensure
that
an
authorised
EU
AIFM otherwise does not or will not comply with this Directive. In
may market to professional investors in the Union units or
the case of a positive decision, the AIFM may start marketing
shares of non-EU AIFs it manages and of EU feeder AIFs that
the AIF in its home Member State as of the date of the notifi
do not fulfil the requirements referred to in the second
cation by the competent authorities to that effect.

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The competent authorities of the home Member State of the
month before implementing a planned change, or immediately
AIFM shall also inform ESMA that the AIFM may start
after an unplanned change has occurred.
marketing the units or shares of the AIF in the home
Member State of the AIFM.
If pursuant to a planned change, the AIFM’s management of the
5. If
an
AIFM
intends
to
market
units
or
shares
of
non-EU
AIF would no longer comply with this Directive or the AIFM
AIFs in a Member State other than its home Member State, the
would no longer comply with this Directive, the competent
AIFM shall submit a notification to the competent authorities of
authorities of the home Member State of the AIFM shall
its home Member State in respect of each non-EU AIF that it
inform the AIFM without undue delay that it is not to
intends to market.
implement the change.
That notification shall comprise the documentation and
information set out in Annex IV.
If a planned change is implemented notwithstanding the first
and second subparagraphs, or if an unplanned change has taken
place pursuant to which the AIFM’s management of the AIF
6. The
competent
authorities
of
the
home
Member
State
of would no longer comply with this Directive or the AIFM
the AIFM shall, no later than 20 working days after the date of
otherwise would no longer comply with this Directive, the
receipt of the complete notification file referred to in paragraph
competent authorities of the home Member State of the AIFM
5, transmit that complete notification file to the competent
shall take all due measures in accordance with Article 46,
authorities of the Member State where the AIF is intended to
including, if necessary, the express prohibition of marketing
be marketed. Such transmission will occur only if the AIFM’s
of the AIF.
management of the AIF complies and will continue to comply
with this Directive and that the AIFM otherwise complies with
this Directive.
If the changes are acceptable because they do not affect the
compliance of the AIFM’s management of the AIF with this
The competent authorities of the home Member State of the
Directive, or the compliance by the AIFM with this Directive
AIFM shall enclose a statement to the effect that the AIFM
otherwise, the competent authorities of the home Member State
concerned is authorised to manage AIFs with a particular
of the AIFM shall, without delay, inform ESMA in so far as the
investment strategy.
changes concern the termination of the marketing of certain
AIFs or additional AIFs marketed and, if applicable, the
competent authorities of the host Member States of the AIFM
7. Upon
transmission
of
the
notification
file,
the
competent of those changes.
authorities of the home Member State of the AIFM shall,
without delay, notify the AIFM about the transmission. The
AIFM may start marketing the AIF in the relevant host
11. The
Commission
shall
adopt,
by
means
of
delegated
acts
Member States of the AIFM as of the date of that notification
in accordance with Article 56 and subject to the conditions of
by the competent authorities.
Articles 57 and 58, measures regarding the cooperation
arrangements referred to in point (a) of paragraph 2 in order
The competent authorities of the home Member State of the
to design a common framework to facilitate the establishment
AIFM shall also inform ESMA that the AIFM may start
of those cooperation arrangements with third countries.
marketing the units or shares of the AIF in the host Member
States of the AIFM.
12. In
order
to
ensure
uniform
application
of
this
Article,
ESMA may develop guidelines to determine the conditions of
8. Arrangements
referred
to
in
point
(h)
of
Annex
IV
shall
be application of the measures adopted by the Commission
subject to the laws and supervision of the host Member States
regarding the cooperation arrangements referred to in point
of the AIFM.
(a) of paragraph 2.
9. Member
States
shall
ensure
that
the
notification
letter
of
the AIFM referred to in paragraph 5 and the statement referred
13. ESMA
shall
develop
draft
regulatory
technical
standards
to in paragraph 6 are provided in a language customary in the
to determine the minimum content of the cooperation
sphere of international finance.
arrangements referred to in point (a) of paragraph 2 so as to
ensure that both the competent authorities of the home and the
host Member States receive sufficient information in order to be
Member States shall ensure that electronic transmission and
able to exercise their supervisory and investigatory powers
filing of the documents referred to in paragraph 6 are
under this Directive.
accepted by their competent authorities.
10. In
the
event
of
a
material
change
to
any
of
the Power is delegated to the Commission to adopt the regulatory
particulars communicated in accordance with paragraph 3 or
technical standards referred to in the first subparagraph in
5, the AIFM shall give written notice of that change to the
accordance with Article 10 to 14 of Regulation (EU)
competent authorities of its home Member State, at least 1
No 1095/2010.

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14. In
order
to
ensure
consistent
harmonisation
of
this referred to in the second subparagraph of Article 31(1),
Article, ESMA shall develop draft regulatory technical
provided that:
standards to specify the procedures for coordination and
exchange of information between the competent authority of
the home Member State and the competent authorities of the
host Member States of the AIFM.
(a) the AIFM complies with all the requirements established in
this Directive with the exception of Article 21. That AIFM
shall however ensure that one or more entities are
Power is delegated to the Commission to adopt the regulatory
appointed to carry out the duties referred to in
technical standards referred to in the first subparagraph in
Article 21(7), (8) and (9). The AIFM shall not perform
accordance with Articles 10 to 14 of Regulation (EU)
those functions. The AIFM shall provide its supervisory
No 1095/2010.
authorities with information about the identity of those
entities responsible for carrying out the duties referred to
in Article 21(7), (8) and (9);
15. In case a competent authority rejects a request to
exchange information in accordance with the regulatory
technical standards referred to in paragraph 14, the
competent authorities concerned may refer the matter to
(b) appropriate cooperation arrangements for the purpose of
ESMA, which may act in accordance with the powers
systemic risk oversight and in line with international
conferred on it under Article 19 of Regulation (EU)
standards are in place between the competent authorities
No 1095/2010.
of the home Member State of the AIFM and the supervisory
authorities of the third country where the non-EU AIF is
established in order to ensure an efficient exchange of
information that allows the competent authorities of the
16. In
order
to
ensure
uniform
conditions
of
application
of
home Member State of the AIFM to carry out their duties
this Article, ESMA may develop draft implementing technical
in accordance with this Directive;
standards to determine:
(a) the form and content of a model for the notification letter
(c) the third country where the non-EU AIF is established is not
referred to in paragraph 3;
listed as a Non-Cooperative Country and Territory by FATF.
(b) the form and content of a model for the notification letter
referred to in paragraph 5;
2. Member
States
may
impose
stricter
rules
on
the
AIFM
in
respect of the marketing of units or shares of non-EU AIFs to
investors in their territory for the purpose of this Article.
(c) the form and content of a model for the statement referred
to in paragraph 6;
3. The
Commission
shall
adopt,
by
means
of
delegated
acts
(d) the form of the transmission referred to in paragraph 6;
in accordance with Article 56 and subject to the conditions of
Articles 57 and 58, measures regarding the cooperation
arrangements referred to in paragraph 1 in order to design a
(e) the form of the written notice referred to in paragraph 10.
common framework to facilitate the establishment of those
cooperation arrangements with third countries.
Power is conferred on the Commission to adopt the imple
menting technical standards referred to in the first subparagraph
4. In
order
to
ensure
uniform
application
of
this
Article,
in accordance with Article 15 of Regulation (EU)
ESMA shall develop guidelines to determine the conditions of
No 1095/2010.
application of the measures adopted by the Commission
regarding the cooperation arrangements referred to in
paragraph 1.
17. Without
prejudice
to
Article
43(1),
Member
States
shall
require that the AIFs managed and marketed by the AIFM be
marketed only to professional investors.
Article 37
Article 36
Authorisation of non-EU AIFMs intending to manage EU
AIFs and/or market AIFs managed by them in the Union in
Conditions for the marketing in Member States without a
accordance with Article 39 or 40
passport of non-EU AIFs managed by an EU AIFM
1. Member
States
shall
require
that
non-EU
AIFMs
intending
1. Without
prejudice
to
Article
35,
Member
States
may
allow to manage EU AIFs and/or to market AIFs managed by them in
an authorised EU AIFM to market to professional investors, in
the Union in accordance with Article 39 or 40 acquire prior
their territory only, units or shares of non-EU AIFs it manages
authorisation by the competent authorities of their Member
and of EU feeder AIFs that do not fulfil the requirements
State of reference in accordance with this Article.

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2. A
non-EU
AIFM
intending
to
obtain
prior
authorisation
as
intend to market any AIF in accordance with Article 39
referred to in paragraph 1 shall comply with this Directive, with
or 40 in the Union, the Member State of reference is either:
the exception of Chapter VI. If and to the extent that
compliance with a provision of this Directive is incompatible
with compliance with the law to which the non-EU AIFM
(i) the Member State where most of the AIFs are estab
and/or the non-EU AIF marketed in the Union is subject,
lished; or
there shall be no obligation on the AIFM to comply with that
provision of this Directive if it can demonstrate that:
(ii) the Member State where the largest amount of assets is
being managed;
(a) it is impossible to combine such compliance with
compliance with a mandatory provision in the law to
(c) if the non-EU AIFM intends to market only one EU AIF in
which the non-EU AIFM and/or the non-EU AIF marketed
only one Member State, the Member State of reference is
in the Union is subject;
determined as follows:
(i) if the AIF is authorised or registered in a Member State,
(b) the law to which the non-EU AIFM and/or the non-EU AIF
the home Member State of the AIF or the Member State
is subject provides for an equivalent rule having the same
where the AIFM intends to market the AIF;
regulatory purpose and offering the same level of protection
to the investors of the relevant AIF; and
(ii) if the AIF is not authorised or registered in a Member
State, the Member State where the AIFM intends to
market the AIF;
(c) the non-EU AIFM and/or the non-EU AIF complies with the
equivalent rule referred to in point (b).
(d) if the non-EU AIFM intends to market only one non-EU AIF
in only one Member State, the Member State of reference is
that Member State;
3. A
non-EU
AIFM
intending
to
obtain
prior
authorisation
as
referred to in paragraph 1 shall have a legal representative
established in its Member State of reference. The legal represen
(e) if the non-EU AIFM intends to market only one EU AIF, but
tative shall be the contact point of the AIFM in the Union and
in different Member States, the Member State of reference is
any official correspondence between the competent authorities
determined as follows:
and the AIFM and between the EU investors of the relevant AIF
and the AIFM as set out in this Directive shall take place
through that legal representative. The legal representative shall
(i) if the AIF is authorised or registered in a Member State,
perform the compliance function relating to the management
the home Member State of the AIF or one of the
and marketing activities performed by the AIFM under this
Member States where the AIFM intends to develop
Directive together with the AIFM.
effective marketing; or
(ii) if the AIF is not authorised or registered in a Member
State, one of the Member States where the AIFM intends
4. The
Member
State
of
reference
of
a
non-EU
AIFM
shall
be
to develop effective marketing;
determined as follows:
(f) if the non-EU AIFM intends to market only one non-EU
AIF, but in different Member States, the Member State of
(a) if the non-EU AIFM intends to manage only one EU AIF, or
reference is one of those Member States;
several EU AIFs established in the same Member State, and
does not intend to market any AIF in accordance with
Article 39 or 40 in the Union, the home Member State
(g) if the non-EU AIFM intends to market several EU AIFs in
of that or those AIFs is deemed to be the Member State
the Union, the Member State of reference is determined as
of reference and the competent authorities of this Member
follows:
State will be competent for the authorisation procedure and
for the supervision of the AIFM;
(i) in so far as those AIFs are all registered or authorised in
the same Member State, the home Member State of
those AIFs or the Member State where the AIFM
(b) if the non-EU AIFM intends to manage several EU AIFs
intends to develop effective marketing for most of
established in different Member States and does not
those AIFs;

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1.7.2011
(ii) in so far as those AIFs are not all registered or auth
regarding the Member State of reference and with information
orised in the same Member State, the Member State
on the marketing strategy of the AIFM.
where the AIFM intends to develop effective marketing
for most of those AIFs;
Within 1 month of having received the notification referred to
in the second subparagraph, ESMA shall issue advice to the
relevant competent authorities about their assessment on the
(h) if the non-EU AIFM intends to market several EU and non-
Member State of reference in accordance with the criteria set
EU AIFs, or several non-EU AIFs in the Union, the Member
out in paragraph 4. ESMA shall issue a negative advice only if it
State of reference is the Member State where it intends to
considers that the criteria set out in paragraph 4 have not been
develop effective marketing for most of those AIFs.
complied with.
The term referred to in Article 8(5) shall be suspended during
In accordance with the criteria set out in points (b), (c)(i), (e), (f),
ESMA’s deliberation in accordance with this paragraph.
and (g)(i) of the first subparagraph, more than one Member
State of reference is possible. In such cases, Member States
shall require that the non-EU AIFM intending to manage EU
AIFs without marketing them and/or market AIFs managed by
If the competent authorities propose to grant authorisation
it in the Union in accordance with Article 39 or 40 submit a
contrary to ESMA’s advice referred to in the third subparagraph
request to the competent authorities of all of the Member States
they shall inform ESMA, stating their reasons. ESMA shall
that are possible Member States of reference in accordance with
publish the fact that the competent authorities do not comply
the criteria set out in those points, to determine its Member
or intend to comply with its advice. ESMA may also decide, on
State of reference from among them. Those competent
a case-by-case basis, to publish the reasons provided by the
authorities shall jointly decide the Member State of reference
competent authorities for not complying with that advice. The
for the non-EU AIFM, within 1 month of receipt of such
competent authorities shall receive advance notice about such a
request. The competent authorities of the Member State that
publication.
is appointed as Member State of reference shall, without
undue delay, inform the non-EU AIFM of that appointment. If
the non-EU AIFM is not duly informed of the decision made by
If the competent authorities propose to grant authorisation
the relevant competent authorities within 7 days of the decision
contrary to ESMA’s advice referred to in the third subparagraph
or if the relevant competent authorities have not made a
and the AIFM intends to market units or shares of AIFs
decision within the 1-month period, the non-EU AIFM may
managed by it in Member States other than the Member State
itself choose its Member State of reference based on the
of reference, the competent authorities of the Member State of
criteria set out in this paragraph.
reference shall also inform the competent authorities of those
Member States thereof, stating their reasons. In so far as
applicable, the competent authorities of the Member State of
reference shall also inform the competent authorities of the
The AIFM shall be able to prove its intention to develop
home Member States of the AIFs managed by the AIFM
effective marketing in a particular Member State by disclosure
thereof, stating their reasons.
of its marketing strategy to the competent authorities of the
Member State indicated by it.
6. Where a competent authority of a Member State disagrees
with the determination of the Member State of reference by the
AIFM, the competent authorities concerned may refer the matter
5. Member
States
shall
require
that
a
non-EU
AIFM
intending to the ESMA which may act in accordance with the powers
to manage EU AIFs without marketing them and/or to market
conferred on it under Article 19 of Regulation (EU) No
AIFs managed by it in the Union in accordance with Article 39
1095/2010.
or 40 submit a request for authorisation to its Member State of
reference.
7. Without
prejudice
to
paragraph
8,
no
authorisation
shall
be granted unless the following additional conditions are met:
After receiving the application for authorisation, the competent
authorities shall assess whether the determination by the AIFM
(a) the Member State of reference is indicated by the AIFM in
as regards its Member State of reference complies with the
accordance with the criteria set out in paragraph 4 and
criteria laid down in paragraph 4. If the competent authorities
supported by the disclosure of the marketing strategy, and
consider that this is not the case, they shall refuse the auth
the procedure set out in paragraph 5 has been followed by
orisation request of the non-EU AIFM explaining the reasons for
the relevant competent authorities;
their refusal. If the competent authorities consider that the
criteria of paragraph 4 have been complied with, they shall
notify ESMA, requesting advice on their assessment. In their
notification to ESMA, the competent authorities shall provide
(b) the AIFM has appointed a legal representative established in
ESMA with the justification by the AIFM of its assessment
the Member State of reference;

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(c) the legal representative shall, together with the AIFM, be the
(a) the information referred to in Article 7(2) shall be supple
contact person of the non-EU AIFM for the investors of the
mented by:
relevant AIFs, for ESMA and for the competent authorities
as regards the activities for which the AIFM is authorised in
the Union and shall at least be sufficiently equipped to
perform the compliance function pursuant to this Directive;
(i) a justification by the AIFM of its assessment regarding
the Member State of reference in accordance with the
criteria set out in paragraph 4 with information on the
marketing strategy;
(d) appropriate cooperation arrangements are in place between
the competent authorities of the Member State of reference,
the competent authorities of the home Member State of the
(ii) a list of the provisions of this Directive for which
EU AIFs concerned and the supervisory authorities of the
compliance by the AIFM is impossible as compliance
third country where the non-EU AIFM is established in
by the AIFM with those provisions is, in accordance
order to ensure at least an efficient exchange of information
with paragraph 2, incompatible with compliance with
that allows the competent authorities to carry out their
a mandatory provision in the law to which the non-EU
duties in accordance with this Directive;
AIFM or the non-EU AIF marketed in the Union is
subject;
(e) the third country where the non-EU AIFM is established is
not listed as a Non-Cooperative Country and Territory by
(iii) written evidence based on the regulatory technical
FATF;
standards developed by ESMA that the relevant third
country law provides for a rule equivalent to the
provisions for which compliance is impossible, which
has the same regulatory purpose and offers the same
(f) the third country where the non-EU AIFM is established has
level of protection to the investors of the relevant AIFs
signed an agreement with the Member State of reference,
and that the AIFM complies with that equivalent rule;
which fully complies with the standards laid down in
such written evidence being supported by a legal
Article 26 of the OECD Model Tax Convention on
opinion on the existence of the relevant incompatible
Income and on Capital and ensures an effective exchange
mandatory provision in the law of the third country
of information in tax matters, including any multilateral tax
and including a description of the regulatory purpose
agreements;
and the nature of the investor protection pursued by it;
and
(g) the effective exercise by the competent authorities of their
supervisory functions under this Directive is neither
(iv) the name of the legal representative of the AIFM and
prevented by the laws, regulations or administrative
the place where it is established;
provisions of a third country governing the AIFM, nor by
limitations in the supervisory and investigatory powers of
that third country’s supervisory authorities.
(b) the information referred to in Article 7(3) may be limited to
the EU AIFs the AIFM intends to manage and to those AIFs
managed by the AIFM that it intends to market in the
Where a competent authority of another Member State
Union with a passport;
disagrees with the assessment made on the application of
points (a) to (e) and (g) of this paragraph by the competent
authorities of the Member State of reference of the AIFM, the
(c) point (a) of Article 8(1) shall be without prejudice to
competent authorities concerned may refer the matter to the
paragraph 2 of this Article;
ESMA, which may act in accordance with the powers conferred
on it under Article 19 of Regulation (EU) No 1095/2010.
(d) point (e) of Article 8(1) shall not apply;
Where a competent authority of an EU AIF does not enter into
the required cooperation arrangements as set out in point (d) of
(e) the second subparagraph of Article 8(5) shall be read as
the first subparagraph within a reasonable period of time, the
including a reference to ‘the information referred to in
competent authorities of the Member State of reference may
point (a) of Article 37(8)’.
refer the matter to the ESMA which may act in accordance
with the powers conferred on it under Article 19 of Regulation
(EU) No 1095/2010.
Where a competent authority of another Member State
disagrees with the authorisation granted by the competent
authorities of the Member State of reference of the AIFM, the
8. The
authorisation
shall
be
given
in
accordance
with competent authorities concerned may refer the matter to the
Chapter II which shall apply mutatis mutandis subject to the
ESMA which may act in accordance with the powers conferred
following criteria:
on it under Article 19 of Regulation (EU) No 1095/2010.

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9. In
case
the
competent
authorities
of
the
Member
State
of The competent authorities shall inform ESMA about the appli
reference consider that the AIFM may rely on paragraph 2 to be
cations for authorisation that they have rejected, providing data
exempted from compliance with certain provisions of this
about the AIFM having asked for authorisation and the reasons
Directive, they shall, without undue delay, notify ESMA
for the rejection. ESMA shall keep a central register of those
thereof. They shall support this assessment by the information
data, which shall be at the disposal of competent authorities, on
provided by the AIFM in accordance with points (a)(ii) and (iii)
request. Competent authorities shall treat this information as
of paragraph 8.
confidential.
Within 1 month of receipt of the notification referred to in the
11.
The determination of the Member State of reference shall
first subparagraph, ESMA shall issue advice to the competent
not be affected by the further business development of the
authorities about the application of the exemption for
AIFM in the Union. However, where the AIFM changes its
compliance with this Directive caused by the incompatibility
marketing strategy within 2 years of its initial authorisation,
in accordance with paragraph 2. The advice may, in particular,
and that change would have affected the determination of the
address whether the conditions for such exemption appear to be
Member State of reference if the modified marketing strategy
met based on the information provided by the AIFM in
had been the initial marketing strategy, the AIFM shall notify
accordance with points (a)(ii) and (iii) of paragraph 8 and on
the competent authorities of the original Member State of
the regulatory technical standards on equivalence. ESMA shall
reference of the change before implementing it and indicate
seek to build a common European supervisory culture and
its Member State of reference in accordance with the criteria
consistent supervisory practices and ensure consistent
set out in paragraph 4 and based on the new strategy. The
approaches among competent authorities in relation to the
AIFM shall justify its assessment by disclosing its new
application of this paragraph.
marketing strategy to its original Member State of reference.
At the same time the AIFM shall provide information on its
legal representative, including its name and the place where it is
The term referred to in Article 8(5) shall be suspended during
established. The legal representative shall be established in the
the ESMA review in accordance with this paragraph.
new Member State of reference.
If the competent authorities of the Member State of reference
The original Member State of reference shall assess whether the
propose to grant authorisation contrary to ESMA’s advice
determination of the AIFM in accordance with the first
referred to in the second subparagraph they shall inform
subparagraph is correct and shall notify ESMA thereof. ESMA
ESMA, stating their reasons. ESMA shall publish the fact that
shall issue advice on the assessment made by the competent
the competent authorities do not comply or intend to comply
authorities. In their notification to ESMA, the competent
with that advice. ESMA may also decide, on a case-by-case basis,
authorities shall provide the AIFM’s justification of its
to publish the reasons provided by the competent authorities
assessment regarding the Member State of reference and
for not complying with that advice. The competent authorities
information on the AIFM’s new marketing strategy.
concerned shall receive advance notice of such publication.
Within 1 month of receipt of the notification referred to in the
If the competent authorities propose to grant authorisation
second subparagraph, ESMA shall issue advice to the relevant
contrary to the ESMA advice referred to in the second
competent authorities about their assessment. ESMA shall issue
subparagraph and the AIFM intends to market units or shares
a negative advice only where it considers that the criteria set out
of AIFs managed by it in Member States other than the Member
in paragraph 4 have not been complied with.
State of reference, the competent authorities of the Member
State of reference shall also inform the competent authorities
of those Member States thereof, stating their reasons.
After receipt of ESMA’s advice in accordance with the third
subparagraph, the competent authorities of the original
Where a competent authority of another Member State
Member State of reference shall inform the non-EU AIFM, its
disagrees with the assessment made on the application of this
original legal representative and ESMA of their decision.
paragraph by the competent authorities of the Member State of
reference of the AIFM, the competent authorities concerned may
refer the matter to the ESMA which may act in accordance with
the powers conferred on it under Article 19 of Regulation (EU)
Where the competent authorities of the original Member State
No 1095/2010.
of reference agree with the assessment made by the AIFM, they
shall also inform the competent authorities of the new Member
State of reference of the change. The original Member State of
reference shall, without undue delay, transfer a copy of the
10. The
competent
authorities
of
the
Member
State
of authorisation and the supervision file relating to the AIFM to
reference shall, without undue delay, inform ESMA of the
the new Member State of reference. From the date of trans
outcome of the initial authorisation process, about any
mission of the authorisation and supervision file, the
changes in the authorisation of the AIFM and any withdrawal
competent authorities of the new Member State of reference
of authorisation.
shall be competent for authorising and supervising the AIFM.

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Where the competent authorities’ final assessment is contrary to
Any disputes between the AIFM or the AIF and EU investors of
ESMA’s advice referred to in the third subparagraph:
the relevant AIF shall be settled in accordance with the law of
and subject to the jurisdiction of a Member State.
(a) the competent authorities shall inform ESMA thereof,
14. The
Commission
shall
adopt
implementing
acts
with
a
stating reasons. ESMA shall publish the fact that the
view to specifying the procedure to be followed by the possible
competent authorities do not comply, or intend not to
Member States of reference when determining the Member State
comply, with its advice. ESMA may also decide, on a
of reference from among those Member States in accordance
case-by-case basis, to publish the reasons for non-
with the second subparagraph of paragraph 4. Those imple
compliance provided by the competent authorities. The
menting acts shall be adopted in accordance with the exam
competent authorities concerned shall receive advance
ination procedure referred to in Article 59(2).
notice of such publication;
15. The
Commission
shall
adopt,
by
means
of
delegated
acts
in accordance with Article 56 and subject to the conditions of
(b) where the AIFM markets units or shares of AIFs managed
Articles 57 and 58, measures regarding the cooperation
by it in Member States other than the original Member State
arrangements referred to in point (d) of paragraph 7 in order
of reference, the competent authorities of the original
to design a common framework to facilitate the establishment
Member State of reference shall inform the competent
of those cooperation arrangements with third countries.
authorities of those other Member States thereof, stating
reasons. Where applicable, the competent authorities of
the Member State of reference shall also inform the
16. In
order
to
ensure
uniform
application
of
this
Article,
competent authorities of the home Member States of the
ESMA may develop guidelines to determine the conditions of
AIFs managed by the AIFM thereof, stating reasons.
application of the measures adopted by the Commission
regarding the cooperation arrangements referred to in point
(d) of paragraph 7.
12. Where
it
appears
from
the
actual
course
of
the
business
development of the AIFM in the Union within 2 years after its
authorisation that the marketing strategy as presented by the
17. ESMA
shall
develop
draft
regulatory
technical
standards
AIFM at the time of its authorisation was not followed, the
to determine the minimum content of the cooperation
AIFM made false statements in relation thereto or the AIFM
arrangements referred to in point (d) of paragraph 7 so as to
has failed to comply with paragraph 11 when changing its
ensure that the competent authorities of the Member State of
marketing strategy, the competent authorities of the original
reference and the competent authorities of the host Member
Member State of reference shall request that the AIFM
States receive sufficient information in order to be able to
indicate the Member State of reference based on its actual
exercise their supervisory and investigatory powers under this
marketing strategy. The procedure set out in paragraph 11
Directive.
shall apply mutatis mutandis. If the AIFM does not comply
with the competent authorities’ request, they shall withdraw
its authorisation.
Power is delegated to the Commission to adopt the regulatory
technical standards referred to in the first subparagraph in
accordance with Articles 10 to 14 of Regulation (EU)
No 1095/2010.
Where the AIFM changes its marketing strategy after the period
referred to in paragraph 11 and intends to change its Member
State of reference on the basis of its new marketing strategy, it
18. In
order
to
ensure
consistent
harmonisation
of
this
may submit a request to change its Member State of reference
Article, ESMA shall develop draft regulatory technical
to the competent authorities of the original Member State of
standards to specify the procedures for coordination and
reference. The procedure referred to in paragraph 11 shall apply
exchange of information between the competent authority of
mutatis mutandis.
the Member State of reference and the competent authorities of
the host Member States of the AIFM.
Where a competent authority of a Member State disagrees with
Power is delegated to the Commission to adopt the regulatory
the assessment made on the determination of the Member State
technical standards referred to in the first subparagraph in
of reference under paragraph 11 or under this paragraph, the
accordance with Articles 10 to 14 of Regulation (EU)
competent authorities concerned may refer the matter to the
No 1095/2010.
ESMA which may act in accordance with the powers conferred
on it under Article 19 of Regulation (EU) No 1095/2010.
19. In case a competent authority rejects a request to
exchange information in accordance with the regulatory
technical standards referred to in paragraph 17, the
13. Any
disputes
arising
between
the
competent
authorities competent authorities concerned may refer the matter to
of the Member State of reference of the AIFM and the AIFM
ESMA, which may act in accordance with the powers
shall be settled in accordance with the law of and subject to the
conferred on it under Article 19 of Regulation (EU)
jurisdiction of the Member State of reference.
No 1095/2010.

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20. In
accordance
with
Article
29
of
Regulation
(EU)
Article 38
No 1095/2010, ESMA shall promote an effective bilateral and
multilateral exchange of information between the competent
Peer review of authorisation and supervision of non-EU
authorities of the Member State of reference of the non-EU
AIFMs
AIFM and the competent authorities of the host Member
1. ESMA
shall,
on
an
annual
basis,
conduct
a
peer
review
States of the AIFM concerned, with full respect for the
analysis of the supervisory activities of the competent
applicable confidentiality and data protection provisions
authorities in relation to the authorisation and the supervision
provided for in the relevant Union legislation.
of non-EU AIFMs under Articles 37, 39, 40 and 41, to further
enhance consistency in supervisory outcomes, in accordance
21. In
accordance
with
Article
31
of
Regulation
(EU) with Article 30 of Regulation (EU) No 1095/2010.
No 1095/2010, ESMA shall fulfil a general coordination role
between the competent authority of the Member State of
reference of the non-EU AIFM and the competent authorities
2. By
22
July
2013,
ESMA
shall
develop
methods
to
allow
of the host Member States of the AIFM concerned. In particular,
for objective assessment and comparison between the
ESMA may:
authorities reviewed.
(a) facilitate the exchange of information between the
competent authorities concerned;
3. In
particular,
the
peer
review
analysis
shall
include
an
assessment of:
(b) determine the scope of the information that the competent
authority of the Member State of reference must provide to
(a) the degree of convergence in supervisory practices achieved
the competent authorities of the host Member States
in the authorisation and supervision of non-EU AIFMs;
concerned;
(c) take all appropriate measures in case of developments which
(b) the extent to which the supervisory practice achieves the
may jeopardise the functioning of the financial markets with
objectives set out in this Directive;
a view to facilitating the coordination of actions undertaken
by the competent authority of the Member State of
reference and the competent authorities of the host
(c) the effectiveness and the degree of convergence achieved
Member States in relation to non-EU AIFMs.
with regard to the enforcement of this Directive and its
implementing measures and the regulatory and imple
22. In
order
to
ensure
uniform
conditions
of
application
of
menting technical standards developed by ESMA pursuant
this Article, ESMA may develop draft implementing technical
to this Directive, including administrative measures and
standards to determine the form and content of the request
penalties imposed against non-EU AIFMs where this
referred to in the second subparagraph of paragraph 12.
Directive has not been complied with.
Power is conferred on the Commission to adopt the imple
4. On the basis of the conclusions of the peer review, ESMA
menting technical standards referred to in the first subparagraph
may issue guidelines and recommendations pursuant to
in accordance with Article 15 of Regulation (EU)
Article 16 of Regulation (EU) No 1095/2010, with a view to
No 1095/2010.
establishing consistent, efficient and effective supervisory
practices of non-EU AIFMs.
23. In
order
to
ensure
the
uniform
application
of
this
Article,
ESMA shall develop draft regulatory technical standards on the
following:
5. The
competent
authorities
shall
make
every
effort
to
comply with those guidelines and recommendations.
(a) the manner in which an AIFM must comply with the
requirements laid down in this Directive, taking into
account that the AIFM is established in a third country
6. Within 2 months of the issuance of a guideline or recom
and, in particular, the presentation of the information
mendation, each competent authority shall confirm whether it
required in Articles 22 to 24;
complies or intends to comply with that guideline or recom
mendation. In the event that a competent authority does not
comply or intend to comply, it shall inform ESMA, stating its
(b) the conditions under which the law to which a non-EU
reasons.
AIFM or a non-EU AIF is subject is considered to provide
for an equivalent rule having the same regulatory purpose
and offering the same level of protection to the relevant
investors.
7. ESMA
shall
publish
the
fact
that
a
competent
authority
does not comply or intend to comply with that guideline or
recommendation. ESMA may also decide, on a case-by-case
Power is delegated to the Commission to adopt the regulatory
basis, to publish the reasons provided by the competent
technical standards referred to in the first subparagraph in
authority for not complying with that guideline or recommen
accordance with Article 10 to 14 of Regulation (EU)
dation. The competent authority shall receive advance notice of
No 1095/2010.
such a publication.

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8. In
the
report
referred
to
in
Article
43(5)
of
Regulation 4. In
case
the
AIFM
intends
to
market
units
or
shares
of
the
(EU) No 1095/2010, ESMA shall inform the European
EU AIF in Member States other than its Member State of
Parliament, the Council and the Commission of the guidelines
reference, the AIFM shall submit a notification to the
and recommendations issued pursuant to this Article, stating
competent authorities of its Member State of reference in
which competent authorities have not complied with them,
respect of each EU AIF that it intends to market.
and outlining how ESMA intends to ensure that those
competent authorities comply with its recommendations and
guidelines in the future.
That notification shall comprise the documentation and
information set out in Annex IV.
9. The
Commission
shall
duly
take
those
reports
into
account in its review of this Directive in accordance with
5. The
competent
authorities
of
the
Member
State
of
Article 69 and in any subsequent evaluation that it conducts.
reference shall, no later than 20 working days after the date
of receipt of the complete notification file referred to in
paragraph 4, transmit the complete notification file to the
competent authorities of the Member States where the units
10. ESMA
shall
make
the
best
practices
that
can
be
identified or shares of the AIF are intended to be marketed. Such trans
from peer reviews publicly available. In addition, all other
mission shall be effected only if the AIFM’s management of the
results of peer reviews may be made public, subject to the
AIF complies and will continue to comply with this Directive
agreement of the competent authority being the subject of the
and if the AIFM otherwise complies with this Directive.
peer review.
The competent authorities of the Member State of reference of
Article 39
the AIFM shall enclose a statement to the effect that the AIFM
concerned is authorised to manage AIFs with a particular
Conditions for the marketing in the Union with a passport
investment strategy.
of EU AIFs managed by a non-EU AIFM
1. Member
States
shall
ensure
that
a
duly
authorised
non-EU
AIFM may market the units or shares of an EU AIF it manages
6. Upon
transmission
of
the
notification
file,
the
competent
to professional investors in the Union with a passport as soon
authorities of the Member State of reference of the AIFM shall,
as the conditions laid down in this Article are met.
without delay, notify the AIFM about the transmission. The
AIFM may start marketing the AIF in the relevant host
Member States as of the date of that notification.
2. In
case
the
AIFM
intends
to
market
units
or
shares
of
the
EU AIF in its Member State of reference, the AIFM shall submit
a notification to the competent authorities of its Member State
The competent authorities of the Member State of reference of
of reference in respect of each EU AIF that it intends to market.
the AIFM shall also inform ESMA and the competent authorities
of the AIF that the AIFM may start marketing the units or
shares of the AIF in the host Member States of the AIFM.
That notification shall comprise the documentation and
information set out in Annex III.
7. The
arrangements
referred
to
in
point
(h)
of
Annex
IV
shall be subject to the laws and supervision of the host
Member States of the AIFM.
3. No
later
than
20
working
days
after
receipt
of
a
complete
notification pursuant to paragraph 2, the competent authorities
of the Member State of reference of the AIFM shall inform the
8. Member States shall ensure that the notification letter by
AIFM whether it may start marketing the AIF identified in the
the AIFM referred to in paragraph 4 and the statement referred
notification referred to in paragraph 2 in its territory. The
to in paragraph 5 are provided in a language customary in the
competent authorities of the Member State of reference of the
sphere of international finance.
AIFM may prevent the marketing of the AIF only if the AIFM’s
management of the AIF does not or will not comply with this
Directive or if the AIFM otherwise does not or will not comply
Member States shall ensure that electronic transmission and
with this Directive. In the case of a positive decision, the AIFM
filing of the documents referred to in paragraph 6 are
may start marketing the AIF in its Member State of reference as
accepted by their competent authorities.
of the date of the notification by the competent authorities to
that effect.
9. In the event of a material change to any of the particulars
communicated in accordance with paragraph 2 and/or 4, the
The competent authorities of the Member State of reference of
AIFM shall give written notice of that change to the competent
the AIFM shall also inform ESMA and the competent authorities
authorities of its Member State of reference at least 1 month
of the AIF that the AIFM may start marketing units or shares of
before implementing a planned change, or immediately after an
the AIF in the Member State of reference of the AIFM.
unplanned change has occurred.

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L 174/52
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Official Journal of the European Union
1.7.2011
If, pursuant to a planned change, the AIFM’s management of the
2. In
addition
to
the
requirements
in
this
Directive
in
AIF would no longer comply with this Directive or the AIFM
relation to EU-AIFMs, for non-EU AIFMs the following
would otherwise no longer comply with this Directive, the
conditions shall be met:
competent authorities of the Member State of reference of the
AIFM shall inform the AIFM, without undue delay, that it is not
to implement the change.
(a) appropriate cooperation arrangements are in place between
the competent authorities of the Member State of reference
If a planned change is implemented notwithstanding the first
and the supervisory authority of the third country where the
and second subparagraphs or if an unplanned change has taken
non-EU AIF is established in order to ensure at least an
place pursuant to which the AIFM’s management of the AIF no
efficient exchange of information that allows the
longer complies with this Directive or the AIFM otherwise no
competent authorities to carry out their duties in accordance
longer complies with this Directive, the competent authorities
with this Directive;
of the Member State reference of the AIFM shall take all due
measures in accordance with Article 46, including, if necessary,
the express prohibition of marketing of the AIF.
(b) the third country where the non-EU AIF is established is not
listed as a Non-Cooperative Country and Territory by FATF;
If the changes are acceptable because they do not affect
compliance of the AIFM’s management of the AIF with this
Directive, or compliance by the AIFM with this Directive
otherwise, the competent authorities of the Member State of
(c) the third country where the non-EU AIF is established has
reference shall, without delay, inform ESMA in so far as the
signed an agreement with the Member State of reference
changes concern the termination of the marketing of certain
and with each other Member State in which the units or
AIFs or additional AIFs being marketed and, in so far as
shares of the non-EU AIF are intended to be marketed
applicable, the competent authorities of the host Member
which fully complies with the standards laid down in
States of those changes.
Article 26 of the OECD Model Tax Convention on
Income and on Capital and ensures an effective exchange
of information in tax matters including any multilateral tax
10. In
order
to
ensure
uniform
conditions
of
application
of
agreements.
this Article, ESMA may develop draft implementing technical
standards to determine:
Where a competent authority of another Member State
disagrees with the assessment made on the application of
(a) the form and content of a model for the notification letter
points (a) and (b) of the first subparagraph by the competent
referred to in paragraphs 2 and 4;
authorities of the Member State of reference of the AIFM, the
competent authorities concerned may refer the matter to the
(b) the form and content of a model for the statement referred
ESMA which may act in accordance with the powers conferred
to in paragraph 5;
on it under Article 19 of Regulation (EU) No 1095/2010.
(c) the form of the transmission referred to in paragraph 5; and
3. The
AIFM
shall
submit
a
notification
to
the
competent
authorities of its Member State of reference in respect of each
non-EU AIF that it intends to market in its Member State of
(d) the form of the written notice referred to in paragraph 9.
reference.
Power is conferred on the Commission to adopt the imple
menting technical standards referred to in the first subparagraph
That notification shall comprise the documentation and
in accordance with Article 15 of Regulation (EU)
information set out in Annex III.
No 1095/2010.
11. Without
prejudice
to
Article
43(1),
Member
States
shall 4. No
later
than
20
working
days
after
receipt
of
a
complete
require that the AIFs managed and marketed by the AIFM be
notification pursuant to paragraph 3, the competent authorities
marketed only to professional investors.
of the Member State of reference of the AIFM shall inform the
AIFM whether it may start marketing the AIF identified in the
notification referred to in paragraph 3 in its territory. The
Article 40
competent authorities of the Member State of reference of the
Conditions for the marketing in the Union with a passport
AIFM may prevent the marketing of the AIF only if the AIFM’s
of non-EU AIFs managed by a non-EU AIFM
management of the AIF does not or will not comply with this
Directive or the AIFM otherwise does not or will not comply
1. Member
States
shall
ensure
that
a
duly
authorised
non-EU
with this Directive. In the case of a positive decision, the AIFM
AIFM may market units or shares of a non-EU AIF it manages
may start marketing the AIF in its Member State of reference
to professional investors in the Union with a passport as soon
from the date of the notification by the competent authorities
as the conditions laid down in this Article are met.
to that effect.

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European
Union L
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The competent authorities of the Member State of reference of
least 1 month before implementing a planned change, or
the AIFM shall also inform ESMA that the AIFM may start
immediately after an unplanned change has occurred.
marketing units or shares of the AIF in the Member State of
reference of the AIFM.
If, pursuant to a planned change, the AIFM’s management of the
5. If the AIFM intends to market the units or shares of a
AIF would no longer comply with this Directive, or the AIFM
non-EU AIF also in Member States other than its Member State
would otherwise no longer comply with this Directive, the
of reference, the AIFM shall submit a notification to the
competent authorities of the Member State of reference of the
competent authorities of its Member State of reference in
AIFM shall inform the AIFM, without undue delay, that it is not
respect of each non-EU AIF that it intends to market.
to implement the change.
That notification shall comprise the documentation and
information set out in Annex IV.
If the planned change is implemented notwithstanding the first
and second subparagraphs, or if an unplanned change has taken
place pursuant to which the AIFM’s management of the AIF no
6. The
competent
authorities
of
the
Member
State
of longer complies with this Directive or the AIFM otherwise no
reference shall, no later than 20 working days after the date
longer complies with this Directive, the competent authorities
of receipt of the complete notification file referred to in
of the Member State of reference of the AIFM shall take all due
paragraph 5, transmit the complete notification file to the
measures in accordance with Article 46, including, if necessary,
competent authorities of the Member States where the units
the express prohibition of marketing of the AIF.
or shares of the AIF are intended to be marketed. Such trans
mission shall occur only if the AIFM’s management of the AIF
complies and will continue to comply with this Directive and
If the changes are acceptable because they do not affect the
that in general the AIFM complies with this Directive.
compliance of the AIFM’s management of the AIF with this
Directive or the compliance by the AIFM with this Directive
The competent authorities of the Member State of reference of
otherwise, the competent authorities of the Member State of
the AIFM shall enclose a statement to the effect that the AIFM
reference shall, without delay, inform ESMA in so far as the
concerned is authorised to manage AIFs with a particular
changes concern the termination of the marketing of certain
investment strategy.
AIFs or additional AIFs being marketed and, in so far as
applicable, the competent authorities of the host Member
States of the AIFM of those changes.
7. Upon
transmission
of
the
notification
file,
the
competent
authorities of the Member State of reference of the AIFM shall,
without delay, notify the AIFM of the transmission. The AIFM
11. The
Commission
shall
adopt,
by
means
of
delegated
acts
may start marketing the AIF in the relevant host Member States
in accordance with Article 56 and subject to the conditions of
of the AIFM as of the date of that notification.
Articles 57 and 58, measures regarding the cooperation
arrangements referred to in point (a) of paragraph 2 in order
The competent authorities of the Member State of reference of
to design a common framework to facilitate the establishment
the AIFM shall also inform ESMA that the AIFM may start
of those cooperation arrangements with third countries.
marketing the units or shares of the AIF in the host Member
States of the AIFM.
12. In
order
to
ensure
uniform
application
of
this
Article,
ESMA may develop guidelines to determine the conditions of
8. Arrangements
referred
to
in
point
(h)
of
Annex
IV
shall
be application of the measures adopted by the Commission
subject to the laws and supervision of the host Member States
regarding the cooperation arrangements referred to in point
of the AIFM, in so far as those Member States are different than
(a) of paragraph 2.
the Member State of reference.
9. Member States shall ensure that the notification letter by
13. ESMA
shall
develop
draft
regulatory
technical
standards
the AIFM referred to in paragraph 5 and the statement referred
to determine the minimum content of the cooperation
to in paragraph 6 are provided in a language customary in the
arrangements referred to in point (a) of paragraph 2 so as to
sphere of international finance.
ensure that the competent authorities of the Member State of
reference and the competent authorities of the host Member
States receive sufficient information in order to be able to
Member States shall ensure that electronic transmission and
exercise their supervisory and investigatory powers under this
filing of the documents referred to in paragraph 6 are
Directive.
accepted by their competent authorities.
10. In
the
event
of
a
material
change
to
any
of
the Power is delegated to the Commission to adopt the regulatory
particulars communicated in accordance with paragraph 3 or
technical standards referred to in the first subparagraph in
5, the AIFM shall give written notice of that change to the
accordance with Articles 10 to 14 of Regulation (EU)
competent authorities of the Member State of reference at
No 1095/2010.

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L 174/54
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1.7.2011
14. In
order
to
ensure
consistent
harmonisation
of
this 2. Any
non-EU
AIFM
intending
to
manage
EU
AIFs
estab
Article, ESMA shall develop draft regulatory technical
lished in another Member State than its Member State of
standards to specify the procedures for coordination and
reference for the first time shall communicate the following
exchange of information between the competent authority of
information to the competent authorities of its Member State
the Member State of reference and the competent authorities of
of reference:
the host Member States of the AIFM.
(a) the Member State in which it intends to manage AIFs
Power is delegated to the Commission to adopt the regulatory
directly or establish a branch;
technical standards referred to in the first subparagraph in
accordance with Articles 10 to 14 of Regulation (EU) No
1095/2010.
(b) a programme of operations stating in particular the services
which it intends to perform and identifying the AIFs it
intends to manage.
15. In case a competent authority rejects a request to
exchange information in accordance with the regulatory
technical standards referred to in paragraph 14, the
3. If
the
non-EU
AIFM
intends
to
establish
a
branch,
it
shall
competent authorities concerned may refer the matter to
provide, in addition to the information requested in paragraph
ESMA, which may act in accordance with the powers
2, the following information:
conferred on it under Article 19 of Regulation (EU)
No 1095/2010.
(a) the organisational structure of the branch;
16. In
order
to
ensure
uniform
conditions
of
application
of
this Article, ESMA may develop draft implementing technical
standards to determine:
(b) the address in the home Member State of the AIF from
which documents may be obtained;
(a) the form and content of a model for the notification letter
referred to in paragraphs 3 and 5;
(c) the names and contact details of persons responsible for the
management of the branch.
(b) the form and content of a model for the statement referred
to in paragraph 6;
4. The
competent
authorities
of
the
Member
State
of
reference shall, within 1 month of receiving the complete docu
mentation in accordance with paragraph 2 or within 2 months
of receiving the complete documentation in accordance with
(c) the form of the transmission referred to in paragraph 6; and
paragraph 3, transmit that documentation to the competent
authorities of the host Member States of the AIFM. Such trans
mission shall occur only if the AIFM’s management of the AIF
(d) the form of the written notice referred to in paragraph 10.
complies and will continue to comply with this Directive and
the AIFM otherwise complies with this Directive.
Power is conferred on the Commission to adopt the imple
menting technical standards referred to in the first subparagraph
The competent authorities of the Member State of reference
in accordance with Article 15 of Regulation (EU)
shall enclose a statement to the effect that the AIFM
No 1095/2010.
concerned is authorised by them.
17. Without
prejudice
to
Article
43(1),
Member
States
shall The competent authorities of the Member State of reference
require that the AIFs managed and marketed by the AIFM be
shall immediately notify the AIFM about the transmission.
marketed only to professional investors.
Upon receipt of the transmission notification the AIFM may
start to provide its services in the host Member States of the
AIFM.
Article 41
Conditions for managing AIFs established in Member
The competent authorities of the Member State of reference
States other than the Member State of reference by non-
shall also inform ESMA that the AIFM may start managing
EU AIFMs
the AIF in the host Member States of the AIFM.
1. Member
States
shall
ensure
that
an
authorised
non-EU
AIFM may manage EU AIFs established in a Member State
other than its Member State of reference either directly or via
5. The
host
Member
States
of
the
AIFM
shall
not
impose
any
the establishment of a branch, provided that the AIFM is auth
additional requirements on the AIFM concerned in respect of
orised to manage that type of AIF.
the matters covered by this Directive.

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EN
1.7.2011 Official
Journal
of
the
European
Union L
174/55
6. In
the
event
of
a
change
to
any
of
the
information
Article 42
communicated in accordance with paragraph 2 and, if
relevant, paragraph 3, an AIFM shall give written notice of
Conditions for the marketing in Member States without a
that change to the competent authorities of its Member State
passport of AIFs managed by a non-EU AIFM
of reference at least 1 month before implementing a planned
1. Without
prejudice
to
Articles
37,
39
and
40,
Member
change, or immediately after an unplanned change has occurred.
States may allow non-EU AIFMs to market to professional
investors, in their territory only, units or shares of AIFs they
manage subject at least to the following conditions:
If, pursuant to a planned change, the AIFM’s management of the
AIF would no longer comply with this Directive or the AIFM
would otherwise no longer comply with this Directive, the
(a) the non-EU AIFM complies with Articles 22, 23 and 24 in
competent authorities of the Member State of reference shall
respect of each AIF marketed by it pursuant to this Article
inform the AIFM without undue delay that it is not to
and with Articles 26 to 30 where an AIF marketed by it
implement the change.
pursuant to this Article falls within the scope of
Article 26(1). Competent authorities and AIF investors
referred to in those Articles shall be deemed those of the
Member States where the AIFs are marketed;
If a planned change is implemented notwithstanding the first
and second subparagraphs or if an unplanned change has taken
place pursuant to which the AIFM’s management of the AIF no
longer complies with this Directive or the AIFM otherwise no
longer complies with this Directive, the competent authorities
(b) appropriate cooperation arrangements for the purpose of
of the Member State of reference shall take all due measures in
systemic risk oversight and in line with international
accordance with Article 46, including, if necessary, the express
standards are in place between the competent authorities
prohibition of marketing of the AIF.
of the Member States where the AIFs are marketed, in so
far as applicable, the competent authorities of the EU AIFs
concerned and the supervisory authorities of the third
country where the non-EU AIFM is established and, in so
far as applicable, the supervisory authorities of the third
If the changes are acceptable because they do not affect the
country where the non-EU AIF is established in order to
compliance of the AIFM’s management of the AIF with this
ensure an efficient exchange of information that allows
Directive or the compliance by the AIFM with this Directive
competent authorities of the relevant Member States to
otherwise, the competent authorities of the Member State of
carry out their duties in accordance with this Directive;
reference shall without undue delay inform the competent
authorities of the host Member States of the AIFM of those
changes.
(c) the third country where the non-EU AIFM or the non-EU
AIF is established is not listed as a Non-Cooperative
7. In
order
to
ensure
consistent
harmonisation
of
this
Country and Territory by FATF.
Article, ESMA may develop draft regulatory technical
standards to specify the information to be notified in
accordance with paragraphs 2 and 3.
Where a competent authority of an EU AIF does not enter into
the required cooperation arrangements as set out in point (b) of
the first subparagraph within a reasonable period of time, the
Power is delegated to the Commission to adopt the regulatory
competent authorities of the Member State where the AIF is
technical standards referred to in the first subparagraph in
intended to be marketed may refer the matter to ESMA
accordance with Articles 10 to 14 of Regulation (EU)
which may act in accordance with the powers conferred on it
No 1095/2010.
under Article 19 of Regulation (EU) No 1095/2010.
8. In
order
to
ensure
uniform
conditions
of
application
of 2. Member States may impose stricter rules on the non-EU
this Article, ESMA may develop draft implementing technical
AIFM in respect of the marketing of units or shares of AIFs to
standards to establish standard forms, templates and procedures
investors in their territory for the purpose of this Article.
for the transmission of information in accordance with
paragraphs 2 and 3.
3. The
Commission
shall
adopt,
by
means
of
delegated
acts
in accordance with Article 56 and subject to the conditions of
Power is conferred on the Commission to adopt the imple
Articles 57 and 58, measures regarding the cooperation
menting technical standards referred to in the first subparagraph
arrangements referred to in paragraph 1 in order to design a
in accordance with Article 15 of Regulation (EU)
common framework to facilitate the establishment of those
No 1095/2010.
cooperation arrangements with third countries.

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L 174/56
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1.7.2011
4. In
order
to
ensure
uniform
application
of
this
Article, The competent authorities shall be public authorities.
ESMA shall develop guidelines to determine the conditions of
application of the measures adopted by the Commission
regarding the cooperation arrangements referred to in
paragraph 1.
Member States shall require that their competent authorities
establish the appropriate methods to monitor that AIFMs
comply with their obligations under this Directive, where
CHAPTER VIII
relevant on the basis of guidelines developed by ESMA.
MARKETING TO RETAIL INVESTORS
Article 43
Article 45
Marketing of AIFs by AIFMs to retail investors
Responsibility of competent authorities in Member States
1. Without
prejudice
to
other
instruments
of
Union
law, 1. The prudential supervision of an AIFM shall be the
Member States may allow AIFMs to market to retail investors
responsibility of the competent authorities of the home
in their territory units or shares of AIFs they manage in
Member State of the AIFM, whether the AIFM manages
accordance with this Directive, irrespective of whether such
and/or markets AIFs in another Member State or not, without
AIFs are marketed on a domestic or cross-border basis or
prejudice to those provisions of this Directive which confer the
whether they are EU or non-EU AIFs.
responsibility for supervision on the competent authorities of
the host Member State of the AIFM.
In such cases, Member States may impose stricter requirements
on the AIFM or the AIF than the requirements applicable to the
AIFs marketed to professional investors in their territory in
2. The supervision of an AIFM’s compliance with Articles 12
accordance with this Directive. However, Member States shall
and 14 shall be the responsibility of the competent authorities
not impose stricter or additional requirements on EU AIFs
of the host Member State of the AIFM where the AIFM manages
established in another Member State and marketed on a
and/or markets AIFs through a branch in that Member State.
cross-border basis than on AIFs marketed domestically.
2. Member
States
that
permit
the
marketing
of
AIFs
to
retail 3. The
competent
authorities
of
the
host
Member
State
of
investors in their territory shall, by 22 July 2014, inform the
the AIFM may require an AIFM managing or marketing AIFs in
Commission and ESMA of:
its territory, whether or not through a branch, to provide the
information necessary for the supervision of the AIFM’s
compliance with the applicable rules for which those
competent authorities are responsible.
(a) the types of AIF which AIFMs may market to retail investors
in their territory;
Those requirements shall not be more stringent than those
(b) any additional requirements that the Member State imposes
which the host Member State of the AIFM imposes on AIFMs
for the marketing of AIFs to retail investors.
for which it is the home Member State for the monitoring of
their compliance with the same rules.
Member States shall also inform the Commission and ESMA of
any subsequent changes with regard to the first subparagraph.
4. Where the competent authorities of the host Member
State of the AIFM ascertain that an AIFM managing and/or
marketing AIFs in its territory, whether or not through a
CHAPTER IX
branch, is in breach of one of the rules in relation to which
they have responsibility for supervising compliance, those
COMPETENT AUTHORITIES
authorities shall require the AIFM concerned to put an end to
SECTION 1
that breach and inform the competent authorities of the home
Member State thereof.
Designation, powers and redress procedures
Article 44
Designation of competent authorities
5. If the AIFM concerned refuses to provide the competent
authorities of its host Member State with information falling
Member States shall designate the competent authorities which
under their responsibility, or fails to take the necessary steps
are to carry out the duties provided for in this Directive.
to put an end to the breach referred to in paragraph 4, the
competent authorities of its host Member State shall inform the
competent authorities of its home Member State thereof. The
They shall inform ESMA and the Commission thereof, indi
competent authorities of the home Member State of the AIFM
cating any division of duties.
shall, at the earliest opportunity:

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(a) take all appropriate measures to ensure that the AIFM
9. The procedure laid down in paragraphs 7 and 8 shall also
concerned provides the information requested by the
apply in the event that the competent authorities of the host
competent authorities of its host Member State pursuant
Member State have clear and demonstrable grounds for
to paragraph 3, or puts an end to the breach referred to
disagreement with the authorisation of a non-EU AIFM by the
in paragraph 4;
Member State of reference.
10. Where
the
competent
authorities
concerned
disagree
on
(b) request the necessary information from the relevant super
any of the measures taken by a competent authority pursuant
visory authorities in third countries.
to paragraphs 4 to 9, they may bring the matter to the
attention of ESMA, which may act in accordance with the
powers conferred to it under Article 19 of Regulation (EU)
No 1095/2010.
The nature of the measures referred to in point (a) shall be
communicated to the competent authorities of the host
Member State of the AIFM.
11. Where
applicable,
ESMA
shall
facilitate
the
negotiation
and conclusion of the cooperation arrangements required by
this Directive between the competent authorities of the
Member States and the supervisory authorities of third
6. If, despite the measures taken by the competent countries.
authorities of the home Member State of the AIFM pursuant
to paragraph 5 or because such measures prove to be inad
equate or are not available in the Member State in question,
Article 46
the AIFM continues to refuse to provide the information
Powers of competent authorities
requested by the competent authorities of its host Member
State pursuant to paragraph 3, or persists in breaching the
1. Competent
authorities
shall
be
given
all
supervisory
and
legal or regulatory provisions, referred to in paragraph 4, in
investigatory powers that are necessary for the exercise of their
force in its host Member State, the competent authorities of
functions. Such powers shall be exercised in any of the
the host Member State of the AIFM may, after informing the
following ways:
competent authorities of the home Member State of the AIFM,
take appropriate measures, including those laid down in Articles
46 and 48, to prevent or penalise further irregularities and, in
(a) directly;
so far as necessary, to prevent that AIFM from initiating any
further transactions in its host Member State. Where the
(b) in collaboration with other authorities;
function carried out in the host Member State of the AIFM is
the management of AIFs, the host Member State may require
the AIFM to cease managing those AIFs.
(c) under their responsibility by delegation to entities to which
tasks have been delegated;
7. Where the competent authorities of the host Member
(d) by application to the competent judicial authorities.
State of the AIFM have clear and demonstrable grounds for
believing that the AIFM is in breach of the obligations arising
2. The
competent
authorities
shall
have
the
power
to:
from rules in relation to which they have no responsibility for
supervising compliance, they shall refer those findings to the
competent authorities of the home Member State of the AIFM
(a) have access to any document in any form and to receive a
which shall take appropriate measures, including, if necessary,
copy of it;
request additional information from the relevant supervisory
authorities in third countries.
(b) require information from any person related to the
activities of the AIFM or the AIF and if necessary to
summon and question a person with a view to obtaining
8. If despite the measures taken by the competent authorities
information;
of the home Member State of the AIFM or because such
measures prove to be inadequate, or because the home
Member State of the AIFM fails to act within a reasonable
(c) carry out on-site inspections with or without prior
timeframe, the AIFM persists in acting in a manner that is
announcements;
clearly prejudicial to the interests of the investors of the
relevant AIF, the financial stability or the integrity of the
(d) require existing telephone and existing data traffic records;
market in the host Member State of the AIFM, the competent
authorities of the host Member State of the AIFM may, after
informing the competent authorities of the home Member State
(e) require the cessation of any practice that is contrary to the
of the AIFM, take all appropriate measures needed in order to
provisions adopted in the implementation of this Directive;
protect the investors of the relevant AIF, the financial stability
and the integrity of the market in the host Member State,
(f) request the freezing or the sequestration of assets;
including the possibility of preventing the AIFM concerned to
further market the units or shares of the relevant AIF in the
host Member State.
(g) request the temporary prohibition of professional activity;

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Official Journal of the European Union
1.7.2011
(h) require authorised AIFM, depositaries or auditors to provide
3. All
the
information
exchanged
under
this
Directive
information;
between ESMA, the competent authorities, EBA, the European
Supervisory Authority (European Insurance and Occupational
Pensions Authority) established by Regulation (EU)
No 1094/2010 of the European Parliament and of the
(i) adopt any type of measure to ensure that AIFMs or
Council (
depositaries continue to comply with the requirements of

1 ) and the ESRB shall be considered confidential,
except where ESMA or the competent authority or other
this Directive applicable to them;
authority or body concerned states at the time of communi
cation that such information may be disclosed or where such
disclosure is necessary for legal proceedings.
(j) require the suspension of the issue, repurchase or
redemption of units in the interest of the unit-holders or
of the public;
4. In accordance with Article 9 of Regulation (EU)
No 1095/2010, ESMA may, where all the conditions in
paragraph 5 are met, request the competent authority or
(k) withdraw the authorisation granted to an AIFM or a
competent authorities to take any of the following measures,
depositary;
as appropriate:
(l) refer
matters
for
criminal
prosecution;
(a) prohibit the marketing in the Union of units or shares of
AIFs managed by non-EU AIFMs or of non-EU AIFs
managed by EU AIFMs without the authorisation required
in Article 37 or without the notification required in Articles
(m) request that auditors or experts carry out verifications or
35, 39 and 40 or without being allowed to do so by the
investigations.
relevant Member States in accordance with Article 42;
3. Where the competent authority of the Member State of
reference considers that an authorised non-EU AIFM is in
(b) impose restrictions on non-EU AIFMs relating to the
breach of its obligations under this Directive, it shall notify
management of an AIF in case of excessive concentration
ESMA, setting out full reasons as soon as possible.
of risk in a specific market on a cross-border basis;
4. Member
States
shall
ensure
that
the
competent
authorities (c) impose restrictions on non-EU AIFMs relating to the
have the powers necessary to take all measures required in order
management of an AIF where its activities potentially
to ensure the orderly functioning of markets in those cases
constitute an important source of counterparty risk to a
where the activity of one or more AIFs in the market for a
credit institution or other systemically relevant institutions.
financial instrument could jeopardise the orderly functioning of
that market.
5. ESMA
may
take
a
decision
under
paragraph
4
and
subject
to the requirements set out in paragraph 6 if both of the
Article 47
following conditions are met:
Powers and competences of ESMA
1. ESMA
may
develop
and
regularly
review
guidelines
for
the
competent authorities of the Member States on the exercise of
(a) a substantial threat exists, originating or aggravated by the
their authorisation powers and on the reporting obligations by
activities of AIFMs, to the orderly functioning and integrity
the competent authorities imposed by this Directive.
of the financial market or to the stability of the whole or a
part of the financial system in the Union and there are cross
border implications; and
ESMA shall further have the powers necessary, including those
enumerated in Article 48(3), to carry out the tasks attributed to
it by this Directive.
(b) the relevant competent authority or competent authorities
have not taken measures to address the threat or the
measures that have been taken do not sufficiently address
the threat.
2. The
obligation
of
professional
secrecy
shall
apply
to
all
persons who work or who have worked for ESMA, and for the
competent authorities or for any other person to whom ESMA
has delegated tasks, including auditors and experts contracted
6. The
measures
taken
by
the
competent
authority
or
by ESMA. Information covered by professional secrecy shall not
competent authorities pursuant to paragraph 4 shall:
be disclosed to another person or authority except where such
disclosure is necessary for legal proceedings.
( 1 ) OJ L 331, 15.12.2010, p. 48.

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(a) effectively address the threat to the orderly functioning and
Member States shall ensure, in accordance with their national
the integrity of the financial market or to the stability of the
law, that the appropriate administrative measures can be taken
whole or a part of the financial system in the Union or
or administrative penalties be imposed against the persons
significantly improve the ability of competent authorities to
responsible where the provisions adopted in the implementation
monitor the threat;
of this Directive have not been complied with. Member States
shall ensure that those measures are effective, proportionate and
dissuasive.
(b) not create a risk of regulatory arbitrage;
(c) not have a detrimental effect on the efficiency of the
2. Member States shall provide that the competent
financial markets, including reducing liquidity in those
authorities may disclose to the public any measure or penalty
markets or creating uncertainty for market participants, in
that will be imposed for infringement of the provisions adopted
a way that is disproportionate to the benefits of the
in the implementation of this Directive, unless such disclosure
measures.
would seriously jeopardise the financial markets, be detrimental
to the interests of the investors or cause disproportionate
damage to the parties involved.
7. Before
requesting
the
competent
authority
to
take
or
renew any measure referred to in paragraph 4, ESMA shall
consult, where appropriate, the ESRB and other relevant
authorities.
3. ESMA
shall
draw
up
an
annual
report
on
the
application
of administrative measures and imposition of penalties in the
case of breaches of the provisions adopted in the implemen
8. ESMA
shall
notify
the
competent
authorities
of
the tation of this Directive in the different Member States.
Member State of reference of the non-EU AIFM and the
Competent authorities shall provide ESMA with the necessary
competent authorities of the host Member States of the non-
information for that purpose.
EU AIFM concerned of the decision to request the competent
authority or competent authorities to impose or renew any
measure referred to in paragraph 4. The notification shall at
least specify the following details:
Article 49
Right of appeal
(a) the AIFM and the activities to which the measures apply and
1. The competent authorities shall give written reasons for
their duration;
any decision to refuse or withdraw authorisation of AIFMs to
manage and/or market AIFs, or any negative decision taken in
the implementation of the measures adopted in application of
(b) the reasons why ESMA is of the opinion that it is necessary
this Directive, and communicate them to applicants.
to impose the measures in accordance with the conditions
and requirements set out in this Article, including the
evidence in support of those reasons.
2. Member States shall provide that any decision taken under
laws, regulations or administrative provisions adopted in
9. ESMA shall review its measures referred to in paragraph 4
accordance with this Directive is properly reasoned and is the
at appropriate intervals and in any event at least every 3
subject of the right of appeal to the courts.
months. If a measure is not renewed after that 3-month
period, it shall automatically expire. Paragraphs 5 to 8 shall
apply to a renewal of measures.
That right to appeal to the courts shall apply also where, in
respect of an application for authorisation which provides all
10. The
competent
authorities
of
the
Member
State
of the information required, no decision is taken within 6 months
reference of the non-EU AIFM concerned may request ESMA
of the submission of the application.
to reconsider its decision. The procedure set out in the second
subparagraph of Article 44(1) of Regulation (EU)
No 1095/2010 shall apply.
SECTION 2
Cooperation between different competent authorities
Article 48
Article 50
Administrative penalties
Obligation to cooperate
1. Member
States
shall
lay
down
the
rules
on
measures
and
penalties applicable to infringements of the national provisions
1. The
competent
authorities
of
the
Member
States
shall
adopted pursuant to this Directive and shall take all measures
cooperate with each other and with ESMA and the ESRB
necessary to ensure that those rules are enforced. Without
whenever necessary for the purpose of carrying out their
prejudice to the procedures for the withdrawal of authorisation
duties under this Directive or of exercising their powers under
or to the right of Member States to impose criminal penalties,
this Directive or under national law.

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2. Member
States
shall
facilitate
the
cooperation
provided
for Power is conferred on the Commission to adopt the imple
in this Section.
menting technical standards referred to in the first subparagraph
in accordance with Article 15 of Regulation (EU)
No 1095/2010.
3. Competent
authorities
shall
use
their
powers
for
the
purpose of cooperation, even in cases where the conduct
Article 51
under investigation does not constitute an infringement of
any regulation in force in their own Member State.
Transfer and retention of personal data
1. With
regard
to
transfer
of
personal
data
between
competent authorities, competent authorities shall apply
4. The
competent
authorities
of
the
Member
States
shall Directive 95/46/EC. With regard to transfer of personal data
immediately supply one another and ESMA with the
by ESMA to the competent authorities of a Member State or
information required for the purposes of carrying out their
of a third country, ESMA shall comply with Regulation (EC)
duties under this Directive.
No 45/2001.
2. Data shall be retained for a maximum period of 5 years.
The competent authorities of the home Member State shall
forward a copy of the relevant cooperation arrangements
entered into by them in accordance with Article 35, 37
Article 52
and/or 40 to the host Member States of the AIFM concerned.
The competent authorities of the home Member State shall, in
Disclosure of information to third countries
accordance with procedures relating to the applicable regulatory
1. The
competent
authority
of
a
Member
State
may
transfer
technical standards referred to in Article 35(14), Article 37(17)
to a third country data and the analysis of data on a case-by-
or Article 40(14), forward the information received from third-
case basis where the conditions laid down in Article 25 or 26
country supervisory authorities in accordance with cooperation
of Directive 95/46/EC are met and where the competent
arrangements with such supervisory authorities in respect of an
authority of the Member State is satisfied that the transfer is
AIFM, or, where relevant, pursuant to Article 45(6) or (7), to
necessary for the purpose of this Directive. The third country
the competent authorities of host Member State of the AIFM
shall not transfer the data to another third country without the
concerned.
express written authorisation of the competent authority of the
Member State.
Where a competent authority of a host Member State considers
2. The
competent
authority
of
a
Member
State
shall
only
that the contents of the cooperation arrangement entered into
disclose information received from a competent authority of
by the home Member State of the AIFM concerned in
another Member State to a supervisory authority of a third
accordance with Article 35, 37 and/or 40 does not comply
country where the competent authority of the Member State
with what is required pursuant to the applicable regulatory
concerned has obtained express agreement of the competent
technical standards, the competent authorities concerned may
authority which transmitted the information and, where
refer the matter to the ESMA which may act in accordance with
applicable, the information is disclosed solely for the purposes
the powers conferred on it under Article 19 of Regulation (EU)
for which that competent authority gave its agreement.
No 1095/2010.
Article 53
5. Where
the
competent
authorities
of
one
Member
State Exchange of information relating to the potential systemic
have clear and demonstrable grounds to suspect that acts
consequences of AIFM activity
contrary to this Directive are being or have been carried out
by an AIFM not subject to supervision of those competent
1. The competent authorities of the Member States
authorities, they shall notify ESMA and the competent
responsible for the authorisation and/or supervision of AIFMs
authorities of the home and host Member States of the AIFM
under this Directive shall communicate information to the
concerned thereof in as specific a manner as possible. The
competent authorities of other Member States where this is
recipient authorities shall take appropriate action, shall inform
relevant for monitoring and responding to the potential impli
ESMA and the notifying competent authorities of the outcome
cations of the activities of individual AIFMs or AIFMs
of that action and, to the extent possible, of significant interim
collectively for the stability of systemically relevant financial
developments. This paragraph shall be without prejudice to the
institutions and the orderly functioning of markets on which
competences of the notifying competent authority.
AIFMs are active. ESMA and the ESRB shall also be informed
and shall forward this information to the competent authorities
of the other Member States.
6. In
order
to
ensure
uniform
application
of
this
Directive
concerning the exchange of information, ESMA may develop
2. Subject
to
the
conditions
laid
down
in
Article
35
of
draft implementing technical standards to determine the
Regulation (EU) No 1095/2010, aggregated information
conditions of application with regard to the procedures for
relating to the activities of AIFMs under their responsibility
exchange of information between competent authorities and
shall be communicated by the competent authorities of the
between the competent authorities and ESMA.
AIFM to ESMA and the ESRB.

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3. The
Commission
shall
adopt,
by
means
of
delegated
acts (b) judicial proceedings have already been initiated in respect of
in accordance with Article 56 and subject to the conditions of
the same actions and the same persons before the
Articles 57 and 58, measures specifying the content of the
authorities of the Member State addressed;
information to be exchanged pursuant to paragraph 1.
(c) final judgment has already been delivered in the Member
4. The
Commission
shall
adopt
implementing
acts
specifying
State addressed in respect of the same persons and the same
the modalities and frequency of the information to be
actions.
exchanged pursuant to paragraph 1. Those implementing acts
shall be adopted in accordance with the examination procedure
referred to in Article 59(2).
The competent authorities shall inform the requesting
competent authorities of any decision taken under the first
subparagraph, stating the reasons therefor.
Article 54
Cooperation in supervisory activities
4. In
order
to
ensure
uniform
application
of
this
Article,
1. The
competent
authorities
of
one
Member
State
may ESMA may develop draft implementing technical standards to
request the cooperation of the competent authorities of
establish common procedures for competent authorities to
another Member State in a supervisory activity or for an on-
cooperate in on-the-spot verifications and investigations.
the-spot verification or in an investigation in the territory of the
latter within the framework of their powers pursuant to this
Directive.
Power is conferred on the Commission to adopt the imple
menting technical standards referred to in the first subparagraph
in accordance with Article 15 of Regulation (EU)
Where the competent authorities receive a request with respect
No 1095/2010.
to an on-the-spot verification or an investigation, it shall
perform one of the following:
Article 55
(a) carry out the verification or investigation itself;
Dispute settlement
In case of disagreement between competent authorities of
(b) allow the requesting authority to carry out the verification
Member States on an assessment, action or omission of one
or investigation;
competent authority in areas where this Directive requires coop
eration or coordination between competent authorities from
more than one Member State, competent authorities may
refer the matter to the ESMA which may act in accordance
(c) allow auditors or experts to carry out the verification or
with the powers conferred on it under Article 19 of Regulation
investigation.
(EU) No 1095/2010.
2. In
the
case
referred
to
in
point
(a)
of
paragraph
1
the
competent authority of the Member State which has requested
CHAPTER X
cooperation may ask that members of its own personnel assist
TRANSITIONAL AND FINAL PROVISIONS
the personnel carrying out the verification or investigation. The
verification or investigation shall, however, be the subject of the
Article 56
overall control of the Member State on whose territory it is
Exercise of the delegation
conducted.
1. The
powers
to
adopt
delegated
acts
referred
to
in
Articles
3, 4, 9, 12, 14 to 25, 34 to 37, 40, 42, 53, 67 and 68 shall be
In the case referred to in point (b) of paragraph 1 the
conferred on the Commission for a period of 4 years from
competent authority of the Member State on whose territory
21 July 2011. The Commission shall draw up a report in
the verification or investigation is carried out may request that
respect of the delegated powers no later than 6 months
members of its own personnel assist the personnel carrying out
before the end of the 4-year period. The delegation of power
the verification or investigation.
shall be automatically extended for periods of an identical
duration, unless the European Parliament or the Council
revokes it in accordance with Article 57.
3. Competent authorities may refuse to exchange
information or to act on a request for cooperation in
carrying out an investigation or on-the-spot verification only
2. As
soon
as
it
adopts
a
delegated
act,
the
Commission
shall
in the following cases:
notify it simultaneously to the European Parliament and to the
Council.
(a) the investigation, on-the-spot verification or exchange of
information might adversely affect the sovereignty, security
3. The
powers
to
adopt
delegated
acts
are
conferred
on
the
or public order of the Member State addressed;
Commission subject to the conditions of Articles 57 and 58.

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Article 57
2. Where
reference
is
made
to
this
paragraph,
Article
5
of
Regulation (EU) No 182/2011 shall apply.
Revocation of the delegation
1. The delegation of power referred to in Articles 3, 4, 9, 12,
14 to 25, 34 to 37, 40, 42, 53, 67 and 68 may be revoked at
any time by the European Parliament or by the Council.
Article 60
Disclosure of derogations
2. The
institution
which
has
commenced
an
internal Where a Member State makes use of a derogation or option
procedure for deciding whether to revoke the delegation of
provided by Articles 6, 9, 21, 22, 28, 43 and Article 61(5), it
power shall endeavour to inform the other institution and the
shall inform the Commission thereof as well as of any
Commission within a reasonable time before the final decision
subsequent changes. The Commission shall make the
is taken, indicating the delegated power which could be subject
information public on a web-site or by other easily accessible
to revocation and the possible reasons for a revocation.
means.
3. The
decision
of
revocation
shall
put
an
end
to
the
delegation of the power specified in that decision. It shall take
Article 61
effect immediately or at a later date specified therein. It shall not
affect the validity of the delegated acts already in force. It shall
Transitional provisions
be published in the Official Journal of the European Union.
1. AIFMs
performing
activities
under
this
Directive
before
22 July 2013 shall take all necessary measures to comply
with national law stemming from this Directive and shall
Article 58
submit an application for authorisation within 1 year of that
date.
Objections to delegated acts
1. The
European
Parliament
and
the
Council
may
object
to
a
delegated act within a period of 3 months from the date of
notification. At the initiative of the European Parliament or the
2. Articles 31, 32 and 33 shall not apply to the marketing of
Council that period shall be extended by 3 months.
units or shares of AIFs that are subject to a current offer to the
public under a prospectus that has been drawn up and
published in accordance with Directive 2003/71/EC before
22 July 2013 for the duration of validity of that prospectus.
2. If,
on
expiry
of
the
period
referred
to
in
paragraph
1,
neither the European Parliament nor the Council has objected
to the delegated act it shall be published in the Official Journal of
the European Union and shall enter into force at the date stated
therein.
3. AIFMs
in
so
far
as
they
manage
AIFs
of
the
closed-ended
type before 22 July 2013 which do not make any additional
investments after 22 July 2013 may however continue to
manage such AIFs without authorisation under this Directive.
The delegated act may be published in the Official Journal of the
European Union and enter into force before the expiry of that
period if, upon a justified request by the Commission, the
European Parliament and the Council have both informed the
Commission of their intention not to raise objections.
4. AIFMs
in
so
far
as
they
manage
AIFs
of
the
closed-ended
type whose subscription period for investors has closed prior to
the entry into force of this Directive and are constituted for a
period of time which expires at the latest 3 years after 22 July
3.
If either the European Parliament or the Council objects to
2013, may, however, continue to manage such AIFs without
the adopted delegated act within the period referred to in
needing to comply with this Directive except for Article 22 and,
paragraph 1, it shall not enter into force. In accordance with
where relevant, Articles 26 to 30, or to submit an application
Article 296 TFEU, the institution which objects shall state the
for authorisation under this Directive.
reasons for objecting to the delegated act.
Article 59
5. The
competent
authorities
of
the
home
Member
State
of
Implementing measures
an AIF or in case where the AIF is not regulated the competent
authorities of the home Member State of an AIFM may allow
1. The
Commission
shall
be
assisted
by
the
European institutions referred to in point (a) of Article 21(3) and estab
Securities Committee established by Commission Decision
lished in another Member State to be appointed as a depositary
2001/528/EC ( 1 ). That committee shall be a committee within
until 22 July 2017. This provision shall be without prejudice to
the meaning of Regulation (EU) No 182/2011.
the full application of Article 21, with the exception of point (a)
of paragraph 5 of that Article on the place where the depositary
( 1 ) OJ L 191, 13.7.2001, p. 45.
is to be established.

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Article 62
(a) the requirements that need to be met by the originator
in order for a UCITS to be allowed to invest in securities
Amendments to Directive 2003/41/EC
or other financial instruments of this type issued after
Directive 2003/41/EC is amended as follows:
1 January 2011, including requirements that ensure that
the originator retains a net economic interest of not less
(1) in Article 2(2), point (b) is replaced by the following:
than 5 %;
‘(b) institutions which are covered by Directives
73/239/EEC (*),
85/611/EEC (**),
93/22/EEC (***),
2000/12/EC (****),
2002/83/EC (*****)
and
(b) qualitative requirements that must be met by UCITS
2011/61/EU (******);
which invest in those securities or other financial
___________
instruments.’;
(*) First Council Directive 73/239/EEC of 24 July 1973
on the coordination of laws, regulations and
administrative provisions relating to the taking-up
(2) Article 112(2) is replaced by the following:
and pursuit of the business of direct insurance
other than life assurance (OJ L 228, 16.8.1973,
p. 3).
(**) Council Directive 85/611/EEC of 20 December
‘2. The
power
to
adopt
the
delegated
acts
referred
to
in
1985 on the coordination of laws, regulations
Articles 12, 14, 23, 33, 43, 51, 60, 61, 62, 64, 75, 78, 81,
and administrative provisions relating to under
95 and 111 shall be conferred on the Commission for a
takings for collective investment in transferable
period of 4 years from 4 January 2011. The power to adopt
securities (UCITS) (OJ L 375, 31.12.1985, p. 3).
the delegated acts referred to in Article 50a shall be
(***) Council Directive 93/22/EEC of 10 May 1993 on
conferred on the Commission for a period of 4 years
investment services in the securities field (OJ L 141,
from 21 July 2011. The Commission shall draw up a
11.6.1993, p. 27).
report in respect of delegated powers at the latest 6
(****) Directive 2000/12/EC of the European Parliament
months before the end of the 4-year period. The delegation
and of the Council of 20 March 2000 relating to
of power shall be automatically extended for periods of an
the taking-up and pursuit of the business of credit
identical duration, unless the European Parliament or the
institutions (OJ L 126, 26.5.2000, p. 1).
Council revokes them in accordance with Article 112a.’;
(*****) Directive 2002/83/EC of the European Parliament
and of the Council of 5 November 2002
concerning life assurance (OJ L 345, 19.12.2002,
p. 1).
(******) Directive 2011/61/EU of the European Parliament
(3) Article 112a(1) is replaced by the following:
and of the Council of 8 June 2011 on Alternative
Investment Fund Managers (OJ L 174, 1.7.2011,
p. 1).’;
‘1. The
delegation
of
power
referred
to
in
Articles
12,
14, 23, 33, 43, 50a, 51, 60, 61, 62, 64, 75, 78, 81, 95 and
(2) Article 19(1) is replaced by the following:
111 may be revoked at any time by the European
Parliament or by the Council.’.
‘1. Member
States
shall
not
restrict
institutions
from
appointing, for the management of the investment
portfolio, investment managers established in another
Member State and duly authorised for this activity, in
Article 64
accordance with Directives 85/611/EEC, 93/22/EEC,
2000/12/EC, 2002/83/EC and 2011/61/EU, as well as
Amendment to Regulation (EC) No 1060/2009
those referred to in Article 2(1) of this Directive.’.
In Regulation (EC) No 1060/2009, the first paragraph of
Article 63
Article 4(1) is replaced by the following:
Amendments to Directive 2009/65/EC
Directive 2009/65/EC is amended as follows:
‘1. Credit
institutions
as
defined
in
Directive
2006/48/EC,
(1) the following Article is inserted:
investment firms as defined in Directive 2004/39/EC,
‘Article 50a
insurance undertakings subject to the First Council Directive
73/239/EEC of 24 July 1973 on the coordination of laws,
In order to ensure cross-sectoral consistency and to remove
regulations and administrative provisions relating to the take-
misalignment between the interest of firms that repackage
up and pursuit of the business of direct insurance other than
loans into tradable securities and other financial instruments
life assurance (*), assurance undertakings as defined in
(originators) and UCITS that invest in those securities or
Directive 2002/83/EC of the European Parliament and of
other financial instruments, the Commission shall adopt,
the Council of 5 November 2002 concerning life
by means of delegated acts in accordance with
assurance (**), reinsurance undertakings as defined in
Article 112a and subject to conditions of Articles 112b
Directive 2005/68/EC of the European Parliament and of
and 112c, measures laying down the requirements in the
the Council of 16 November 2005 on reinsurance (***),
following areas:
UCITS as defined in Directive 2009/65/EC of the European

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Parliament and of the Council of 13 July 2009 on the coor
5. When
Member
States
adopt
the
measures
referred
to
in
dination of laws, regulations and administrative provisions
paragraph 1, they shall contain a reference to this Directive or
relating to undertakings for collective investment in trans
shall be accompanied by such a reference on the occasion of
ferable securities (UCITS) (****), institutions for occupational
their official publication.
retirement provision as defined in Directive 2003/41/EC and
alternative investment funds as defined in Directive
2011/61/EU of the European Parliament and of the Council
of 8 June 2011 on Alternative Investment Fund
6. Member
States
shall
communicate
to
the
Commission
the
Managers
(*****) may use credit ratings for regulatory
text of the main provisions of national law which they adopt in
purposes only if they are issued by credit rating agencies
the field covered by this Directive.
established in the Union and registered in accordance with
this Regulation.
Article 67
___________
(*) OJ L 228, 16.8.1973, p. 3.
Delegated act on the application of Article 35 and Articles
(**) OJ L 345, 19.12.2002, p. 1.
37 to 41
(***) OJ L 323, 9.12.2005, p. 1.
1. By
22
July
2015,
ESMA
shall
issue
to,
the
European
(****) OJ L 302, 17.11.2009, p. 32.
Parliament, the Council and the Commission:
(*****) OJ L 174, 1.7.2011, p. 1.’.
(a) an opinion on the functioning of the passport for EU AIFMs
Article 65
managing and/or marketing EU AIFs pursuant to Articles 32
and 33 and on the functioning of the marketing of non-EU
Amendment to Regulation (EU) No 1095/2010
AIFs by EU AIFMs in the Member States and the
In Article 1(2) of Regulation (EU) No 1095/2010, the words
management and/or marketing of AIFs by non-EU AIFMs
‘any future legislation in the area of Alternative Investment Fund
in the Member States pursuant to the applicable national
Managers (AIFM)’ are replaced by the words ‘Directive
regimes set out in Articles 36 and 42; and
2011/61/EU of the European Parliament and of the Council
of 8 June 2011 on Alternative Investment Fund Managers (*)
(b) advice on the application of the passport to the marketing
___________
of non-EU AIFs by EU AIFMs in the Member States and the
(*) OJ L 174, 1.7.2011, p. 1.’.
management and/or marketing of AIFs by non-EU AIFMs in
the Member States in accordance with the rules set out in
Article 35 and Articles 37 to 41.
Article 66
Transposition
2. ESMA
shall
base
its
opinion
and
advice
on
the
application
1. By
22
July
2013,
Member
States
shall
adopt
and
publish of the passport to the marketing of non-EU AIFs by EU AIFMs
the laws, regulations and administrative provisions necessary to
in the Member States and the management and/or marketing of
comply with this Directive. They shall forthwith communicate
AIFs by non-EU AIFMs in the Member States, inter alia, on:
to the Commission the text of those provisions and a corre
lation table between those provisions and this Directive.
(a) as regards the functioning of the passport for EU AIFMs
2. Member
States
shall
apply
the
laws,
regulations
and
managing and/or marketing EU AIFs:
administrative provisions referred to in paragraph 1 from
22 July 2013.
(i) the use made of the passport;
3. Notwithstanding
paragraph
2,
Member
States
shall
apply
the laws, regulations and administrative provisions necessary to
comply with Article 35 and Articles 37 to 41 in accordance
with the delegated act adopted by the Commission pursuant to
(ii) the problems encountered regarding:
Article 67(6) and from the date specified therein.
4. Member
States
shall
ensure
that
the
laws,
regulations
and
— effective cooperation among competent authorities,
administrative provisions adopted by them in compliance with
Articles 36 and 42 cease to apply in accordance with the
delegated act adopted by the Commission pursuant to
Article 68(6) and on the date specified therein.
— effective functioning of the notification system,

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— investor protection,
either under the application of the passport regime provided
for in this Directive or under their national regimes, and with
information needed for the assessment of the elements referred
— mediation by ESMA, including the number of cases
to in paragraph 2.
and the effectiveness of the mediation;
(iii) the effectiveness of the collection and sharing of
4. Where
ESMA
considers
that
there
are
no
significant
information in relation to the monitoring of systemic
obstacles regarding investor protection, market disruption,
risks by national competent authorities, ESMA and
competition and the monitoring of systemic risk, impeding
ESRB;
the application of the passport to the marketing of non-EU
AIFs by EU AIFMs in the Member States and the management
and/or marketing of AIFs by non-EU AIFMs in the Member
(b) as regards the functioning of the marketing of non-EU AIFs
States in accordance with the rules set out in Article 35 and
by EU AIFMs in the Member States and the management
Articles 37 to 41, it shall issue positive advice in this regard.
and/or marketing of AIFs by non-EU AIFMs in the Member
States in accordance with the applicable national regimes:
5. The
Commission
shall
adopt,
by
means
of
delegated
acts
(i) compliance of EU AIFMs with all the requirements
in accordance with Article 56 and subject to the conditions of
established in this Directive with the exception of
Articles 57 and 58, measures specifying the contents of the
Article 21;
information to be provided pursuant to paragraph 2.
(ii) compliance of non-EU AIFMs with Articles 22, 23 and
24 in respect of each AIF marketed by the AIFM and,
6. The
Commission
shall
adopt
a
delegated
act
within
3
where relevant, with Articles 26 to 30;
months after having received positive advice and an opinion
from ESMA, and taking into account the criteria listed in
paragraph 2 and the objectives of this Directive, such as those
(iii) existence and effectiveness of cooperation arrangements
relating to the internal market, investor protection and the
for the purpose of systemic risk oversight and in line
effective monitoring of systemic risk, in accordance with
with international standards between the competent
Article 56 and subject to the conditions of Articles 57 and
authorities of the Member State where the AIFs are
58, specifying the date when the rules set out in Article 35
marketed, in so far as applicable, the competent
and Articles 37 to 41 become applicable in all Member States.
authorities of the home Member State of the EU AIF
and the supervisory authorities of the third country
where the non-EU AIFM is established and, in so far
as applicable, the supervisory authorities of the third
If there is objection to the delegated act referred to in the first
country where the non-EU AIF is established;
subparagraph in accordance with Article 58, the Commission
shall re-adopt the delegated act pursuant to which the rules set
out in Article 35 and Articles 37 to 41 shall become applicable
(iv) any issues relating to investor protection that might
in all Member States, in accordance with Article 56 and subject
have occurred;
to the conditions of Articles 57 and 58, at a later stage which
seems appropriate to it, taking into account the criteria listed in
paragraph 2 and the objectives of this Directive, such as those
(v) any features of a third-country regulatory and super
relating to the internal market, investor protection and the
visory framework which might prevent the effective
effective monitoring of systemic risk.
exercise by the competent authorities of their super
visory functions under this Directive;
7. If
ESMA
has
not
issued
its
advice
within
the
time
limit
(c) as regards the functioning of both systems, the potential
referred to in paragraph 1, the Commission shall request the
market disruptions and distortions in competition (level
advice to be provided within a new time limit.
playing field) or any general or specific difficulties which
EU AIFMs encounter in establishing themselves or
marketing AIFs they manage in any third country.
Article 68
Delegated act on the termination of the application of
3. To
that
end,
as
from
the
entry
into
force
of
the
national
Articles 36 and 42
laws, regulations and administrative provisions necessary to
comply with this Directive and until the issuance of the
1. 3
years
after
the
entry
into
force
of
the
delegated
act
opinion of ESMA referred to in point (a) of paragraph 1, the
referred to in Article 67(6) pursuant to which the rules set
competent authorities of the Member States shall, quarterly,
out in Article 35 and Articles 37 to 41 have become applicable
provide ESMA with information on the AIFMs that are
in all Member States, ESMA shall issue to the European
managing and/or marketing AIFs under their supervision,
Parliament, the Council and the Commission:

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(a) an opinion on the functioning of the passport for EU AIFMs
(iii) the negotiation, conclusion, existence and effectiveness
marketing non-EU AIFs in the Union pursuant to Article 35
of the required cooperation arrangements;
and for non-EU AIFMs managing and/or marketing AIFs in
the Union pursuant to Articles 37 to 41, and on the func
tioning of the marketing of non-EU AIFs by EU AIFMs in
the Member States and the management and/or marketing
(iv) the effectiveness of the collection and sharing of
of AIFs by non-EU AIFMs in the Member States pursuant to
information in relation to the monitoring of systemic
the applicable national regimes as set out in Articles 36 and
risks by national competent authorities, ESMA and the
42; and
ESRB;
(b) advice on the termination of the existence of the national
regimes set out in Articles 36 and 42 in parallel with the
(v) results of peer reviews referred to in Article 38;
existence of the passport in accordance with the rules set
out in Article 35 and Articles 37 to 41.
(b) as regards the functioning of the marketing of non-EU AIFs
2. ESMA
shall
base
its
opinion
and
advice
on
the
termi
by EU AIFMs in the Member States and the management
nation of the existence of the national regimes set out in
and/or marketing of AIFs by non-EU AIFMs in the Member
Articles 36 and 42 inter alia:
States in accordance with the applicable national regimes:
(a) as regards the functioning of the passport for EU AIFMs
(i) compliance of EU AIFMs with all the requirements
marketing non-EU AIFs in the Union and for non-EU
established in this Directive with the exception of
AIFMs managing and/or marketing AIFs in the Union:
Article 21;
(i) the use made of the passport;
(ii) compliance of non-EU AIFMs with Articles 22, 23 and
24 in respect of each AIF marketed by the AIFM and,
(ii) the problems encountered regarding:
where relevant, with Articles 26 to 30;
— effective cooperation among competent authorities,
(iii) existence and effectiveness of cooperation arrangements
for the purpose of systemic risk oversight and in line
with international standards between the competent
— effective functioning of the notification system,
authorities of the Member State where the AIFs are
marketed, in so far as applicable, the competent
authorities of the home Member State of the EU AIF
— the indication of the Member State of reference,
concerned and the supervisory authorities of the third
country where the non-EU AIFM is established and, in
so far as applicable, the supervisory authorities of the
third country where the non-EU AIF is established;
— the effective exercise by the competent authorities
of their supervisory functions being prevented by
the laws, regulations or administrative provisions
of a third country governing AIFMs, or by limi
(iv) any issues relating to investor protection that might
tations in the supervisory and investigatory powers
have occurred;
of the third country supervisory authorities,
— investor protection,
(v) any features of a third country regulatory and super
visory framework which might prevent the effective
exercise by the competent authorities of the Union of
— investor access in the Union,
their supervisory functions under this Directive;
— the impact on developing countries,
(c) as regards the functioning of both systems, the potential
market disruptions and distortions in competition (level
playing field) and any potential negative effect on investor
— mediation by ESMA, including the number of cases
access or investment in or for the benefit of developing
and the effectiveness of the mediation;
countries;

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(d) a quantitative assessment identifying the number of third-
paragraph 2 and the objectives of this Directive, such as those
country jurisdictions in which there is established an AIFM
relating to the internal market, investor protection and the
that is marketing an AIF in a Member State either under the
effective monitoring of systemic risk.
application of the passport regime referred to in Article 40
or under the national regimes referred to in Article 42.
7. If
ESMA
has
not
issued
its
advice
within
the
time
limit
referred to in paragraph 1, the Commission shall request the
advice to be provided within a new time limit.
3. To that end, as from the entry into force of the delegated
act referred to in Article 67(6) and until the issuance of the
Article 69
ESMA opinion referred to in point (a) of paragraph 1 of this
Article, the competent authorities shall, quarterly, provide ESMA
Review
with information on the AIFMs that are managing and/or
marketing AIFs under their supervision, either under the appli
1. By 22 July 2017, the Commission shall, on the basis of
cation of the passport regime provided for in this Directive, or
public consultation and in the light of the discussions with
under their national regimes.
competent authorities, start a review on the application and
the scope of this Directive. That review shall analyse the
experience acquired in applying this Directive, its impact on
investors, AIFs or AIFMs, in the Union and in third countries,
and the degree to which the objectives of this Directive have
4. If
ESMA
considers
that
there
are
no
significant
obstacles been achieved. The Commission shall, if necessary, propose
regarding investor protection, market disruption, competition or
appropriate amendments. The review shall include a general
the monitoring of systemic risk, impeding the termination of
survey of the functioning of the rules in this Directive and
the national regimes pursuant to Articles 36 and 42 and
the experience acquired in applying them, including:
making the passport for the marketing of non-EU AIFs by EU
AIFMs in the Union and the management and/or marketing of
AIFs by non-EU AIFM in the Union in accordance with the
(a) the marketing by EU AIFMs of non-EU AIFs in the Member
rules set out in Article 35 and Articles 37 to 41 the sole
States taking place through national regimes;
possible regime for such activities by the relevant AIFMs in
the Union, it shall issue positive advice in this regard.
(b) the marketing of AIFs in the Member States by non-EU
AIFMs taking place through national regimes;
5. The
Commission
shall
adopt,
by
means
of
delegated
acts (c) the management and marketing of AIFs in the Union by
in accordance with Article 56 and subject to the conditions of
AIFMs authorised in accordance with this Directive taking
Articles 57 and 58, measures specifying the contents of the
place through the passport regime provided for in this
information to be provided pursuant to paragraph 2.
Directive;
(d) the marketing of AIFs in the Union by or on behalf of
6. The
Commission
shall
adopt
a
delegated
act
within
3
persons or entities other than AIFMs;
months after having received positive advice and an opinion
from ESMA and taking into account the criteria listed in
paragraph 2 and the objectives of this Directive, such as those
(e) the investment into AIFs by or on behalf of European
relating to the internal market, investor protection and the
professional investors;
effective monitoring of systemic risk, in accordance with
Article 56 and subject to the conditions of Articles 57 and
58, specifying the date when the national regimes set out in
(f) the impact of the depositary rules set out in Article 21 on
Articles 36 and 42 are to be terminated and the passport
the depositary market in the Union;
regime provided for in Article 35 and Articles 37 to 41 shall
become the sole and mandatory regime applicable in all
Member States.
(g) the impact of the transparency and reporting requirements
set out in Articles 22 to 24, 28 and 29 on the assessment
of systemic risk;
If there is objection to the delegated act referred to in the first
(h) the potential adverse impact on retail investors;
subparagraph in accordance with Article 58, the Commission
shall re-adopt the delegated act pursuant to which the national
regimes set out in Articles 36 and 42 are to be terminated and
(i) the impact of this Directive on the operation and viability of
the passport regime provided for in Article 35 and Articles 37
the private equity and venture capital funds;
to 41 shall become the sole and mandatory regime applicable in
all Member States, in accordance with Article 56 and subject to
the conditions of Articles 57 and 58, at a later stage which
(j) the impact of this Directive on the investor access in the
seems appropriate to it, taking into account the criteria listed in
Union;

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(k) the impact of this Directive on investment in or for the
(e) information on the applicable regime, whether national or
benefit of developing countries;
Union, under which the relevant AIFMs are performing their
activities; and
(l) the impact of this Directive on the protection of non-listed
companies or issuers provided by Articles 26 to 30 of this
(f) any other information relevant to the understanding of how
Directive and on the level playing field between AIFs and
the management and the marketing of AIFs by AIFMs in the
other investors after the acquisition of major holdings in or
Union operates in practice.
control over such non-listed companies or issuers.
When reviewing marketing and/or management of AIFs referred
3. The
review
referred
to
in
paragraph
1
shall
take
due
to in points (a), (b) and (c) of the first subparagraph, the
account of developments at international level and discussions
Commission shall analyse the appropriateness of entrusting
with third countries and international organisations.
ESMA with further supervisory responsibilities in this area.
4. After
finalising
its
review,
the
Commission
shall,
without
2. For the purposes of the review referred to in paragraph 1,
undue delay, submit a report to the European Parliament and
Member States shall provide the Commission annually with
the Council. If appropriate, the Commission shall make
information on the AIFMs that are managing and/or
proposals, including amendments to this Directive, taking into
marketing AIFs under their supervision, either under the
account the objectives of this Directive and its effects on
passport regime provided for in this Directive, or under their
investor protection, market disruption and competition, the
national regimes, with an indication of the date on which the
monitoring of systemic risk and potential impacts on investors,
passport regime has been transposed and, if relevant, applied, in
AIFs or AIFMs in the Union and in third countries.
their jurisdiction.
Article 70
ESMA shall provide the Commission with information on all
the non-EU AIFMs that have been authorised or have requested
Entry into force
authorisation in accordance with Article 37.
This Directive shall enter into force on the 20th day following
its publication in the Official Journal of the European Union.
The information referred to in the first and second
subparagraphs shall include:
Article 71
(a) information on where the AIFMs concerned are established;
Addressees
This Directive is addressed to the Member States.
(b) if applicable, identification of the EU AIFs managed and/or
marketed by them;
Done at Strasbourg, 8 June 2011.
(c) if applicable, identification of the non-EU AIFs managed by
EU AIFMs but not marketed in the Union;
For the European Parliament
For the Council
(d) if applicable, identification of the non-EU AIFs marketed in
The President
The President
the Union;
J. BUZEK
GYRI E.

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ANNEX I
1. Investment management functions which an AIFM shall at least perform when managing an AIF:
(a) portfolio management;
(b) risk management.
2. Other functions that an AIFM may additionally perform in the course of the collective management of an AIF:
(a) Administration:
(i) legal and fund management accounting services;
(ii) customer inquiries;
(iii) valuation and pricing, including tax returns;
(iv) regulatory compliance monitoring;
(v) maintenance of unit-/shareholder register;
(vi) distribution of income;
(vii) unit/shares issues and redemptions;
(viii) contract settlements, including certificate dispatch;
(ix) record keeping;
(b) Marketing;
(c) Activities related to the assets of AIFs, namely services necessary to meet the fiduciary duties of the AIFM, facilities
management, real estate administration activities, advice to undertakings on capital structure, industrial strategy
and related matters, advice and services relating to mergers and the purchase of undertakings and other services
connected to the management of the AIF and the companies and other assets in which it has invested.

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ANNEX II
REMUNERATION POLICY
1. When establishing and applying the total remuneration policies, inclusive of salaries and discretionary pension benefits,
for those categories of staff, including senior management, risk takers, control functions and any employee receiving
total remuneration that takes them into the same remuneration bracket as senior management and risk takers, whose
professional activities have a material impact on the risk profiles of the AIFMs or of AIFs they manage, AIFMs shall
comply with the following principles in a way and to the extent that is appropriate to their size, internal organisation
and the nature, scope and complexity of their activities:
(a) the remuneration policy is consistent with and promotes sound and effective risk management and does not
encourage risk-taking which is inconsistent with the risk profiles, rules or instruments of incorporation of the
AIFs they manage;
(b) the remuneration policy is in line with the business strategy, objectives, values and interests of the AIFM and the
AIFs it manages or the investors of such AIFs, and includes measures to avoid conflicts of interest;
(c) the management body of the AIFM, in its supervisory function, adopts and periodically reviews the general
principles of the remuneration policy and is responsible for its implementation;
(d) the implementation of the remuneration policy is, at least annually, subject to central and independent internal
review for compliance with policies and procedures for remuneration adopted by the management body in its
supervisory function;
(e) staff engaged in control functions are compensated in accordance with the achievement of the objectives linked to
their functions, independent of the performance of the business areas they control;
(f) the remuneration of the senior officers in the risk management and compliance functions is directly overseen by
the remuneration committee;
(g) where remuneration is performance related, the total amount of remuneration is based on a combination of the
assessment of the performance of the individual and of the business unit or AIF concerned and of the overall
results of the AIFM, and when assessing individual performance, financial as well as non-financial criteria are
taken into account;
(h) the assessment of performance is set in a multi-year framework appropriate to the life-cycle of the AIFs managed
by the AIFM in order to ensure that the assessment process is based on longer term performance and that the
actual payment of performance-based components of remuneration is spread over a period which takes account
of the redemption policy of the AIFs it manages and their investment risks;
(i) guaranteed
variable
remuneration
is
exceptional,
occurs
only
in
the
context
of
hiring
new
staff
and
is
limited
to
the first year;
(j) fixed and variable components of total remuneration are appropriately balanced and the fixed component
represents a sufficiently high proportion of the total remuneration to allow the operation of a fully flexible
policy, on variable remuneration components, including the possibility to pay no variable remuneration
component;
(k) payments related to the early termination of a contract reflect performance achieved over time and are designed in
a way that does not reward failure;
(l) the measurement of performance used to calculate variable remuneration components or pools of variable
remuneration components includes a comprehensive adjustment mechanism to integrate all relevant types of
current and future risks;
(m) subject to the legal structure of the AIF and its rules or instruments of incorporation, a substantial portion, and in
any event at least 50 % of any variable remuneration consists of units or shares of the AIF concerned, or
equivalent ownership interests, or share-linked instruments or equivalent non-cash instruments, unless the
management of AIFs accounts for less than 50 % of the total portfolio managed by the AIFM, in which case
the minimum of 50 % does not apply.
The instruments referred to in this point shall be subject to an appropriate retention policy designed to align
incentives with the interests of the AIFM and the AIFs it manages and the investors of such AIFs. Member States
or their competent authorities may place restrictions on the types and designs of those instruments or ban certain
instruments as appropriate. This point shall be applied to both the portion of the variable remuneration
component deferred in line with point (n) and the portion of the variable remuneration component not deferred;

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EN
1.7.2011 Official
Journal
of
the
European
Union L
174/71
(n) a substantial portion, and in any event at least 40 %, of the variable remuneration component, is deferred over a
period which is appropriate in view of the life cycle and redemption policy of the AIF concerned and is correctly
aligned with the nature of the risks of the AIF in question.
The period referred to in this point shall be at least three to 5 years unless the life cycle of the AIF concerned is
shorter; remuneration payable under deferral arrangements vests no faster than on a pro-rata basis; in the case of
a variable remuneration component of a particularly high amount, at least 60 % of the amount is deferred;
(o) the variable remuneration, including the deferred portion, is paid or vests only if it is sustainable according to the
financial situation of the AIFM as a whole, and justified according to the performance of the business unit, the AIF
and the individual concerned.
The total variable remuneration shall generally be considerably contracted where subdued or negative financial
performance of the AIFM or of the AIF concerned occurs, taking into account both current compensation and
reductions in payouts of amounts previously earned, including through malus or clawback arrangements;
(p) the pension policy is in line with the business strategy, objectives, values and long-term interests of the AIFM and
the AIFs it manages.
If the employee leaves the AIFM before retirement, discretionary pension benefits shall be held by the AIFM for a
period of 5 years in the form of instruments defined in point (m). In the case of an employee reaching retirement,
discretionary pension benefits shall be paid to the employee in the form of instruments defined in point (m),
subject to a 5 year retention period;
(q) staff are required to undertake not to use personal hedging strategies or remuneration- and liability-related
insurance to undermine the risk alignment effects embedded in their remuneration arrangements;
(r) variable remuneration is not paid through vehicles or methods that facilitate the avoidance of the requirements of
this Directive.
2. The principles set out in paragraph 1 shall apply to remuneration of any type paid by the AIFM, to any amount paid
directly by the AIF itself, including carried interest, and to any transfer of units or shares of the AIF, made to the
benefits of those categories of staff, including senior management, risk takers, control functions and any employee
receiving total remuneration that takes them into the same remuneration bracket as senior management and risk
takers, whose professional activities have a material impact on their risk profile or the risk profiles of the AIF that they
manage.
3. AIFMs that are significant in terms of their size or the size of the AIFs they manage, their internal organisation and the
nature, the scope and the complexity of their activities shall establish a remuneration committee. The remuneration
committee shall be constituted in a way that enables it to exercise competent and independent judgment on remun
eration policies and practices and the incentives created for managing risk.
The remuneration committee shall be responsible for the preparation of decisions regarding remuneration, including
those which have implications for the risk and risk management of the AIFM or the AIF concerned and which are to
be taken by the management body in its supervisory function. The remuneration committee shall be chaired by a
member of the management body who does not perform any executive functions in the AIFM concerned. The
members of the remuneration committee shall be members of the management body who do not perform any
executive functions in the AIFM concerned.

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L 174/72
EN
Official Journal of the European Union
1.7.2011
ANNEX III
DOCUMENTATION AND INFORMATION TO BE PROVIDED IN CASE OF INTENDED MARKETING IN THE
HOME MEMBER STATE OF THE AIFM
(a) A notification letter, including a programme of operations identifying the AIFs the AIFM intends to market and
information on where the AIFs are established;
(b) the AIF rules or instruments of incorporation;
(c) identification of the depositary of the AIF;
(d) a description of, or any information on, the AIF available to investors;
(e) information on where the master AIF is established if the AIF is a feeder AIF;
(f) any additional information referred to in Article 23(1) for each AIF the AIFM intends to market;
(g) where relevant, information on the arrangements established to prevent units or shares of the AIF from being
marketed to retail investors, including in the case where the AIFM relies on activities of independent entities to
provide investment services in respect of the AIF.

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EN
1.7.2011 Official
Journal
of
the
European
Union L
174/73
ANNEX IV
DOCUMENTATION AND INFORMATION TO BE PROVIDED IN THE CASE OF INTENDED MARKETING IN
MEMBER STATES OTHER THAN THE HOME MEMBER STATE OF THE AIFM
(a) A notification letter, including a programme of operations identifying the AIFs the AIFM intends to market and
information on where the AIFs are established;
(b) the AIF rules or instruments of incorporation;
(c) identification of the depositary of the AIF;
(d) a description of, or any information on, the AIF available to investors;
(e) information on where the master AIF is established if the AIF is a feeder AIF;
(f) any additional information referred to in Article 23(1) for each AIF the AIFM intends to market;
(g) the indication of the Member State in which it intends to market the units or shares of the AIF to professional
investors;
(h) information about arrangements made for the marketing of AIFs and, where relevant, information on the
arrangements established to prevent units or shares of the AIF from being marketed to retail investors, including
in the case where the AIFM relies on activities of independent entities to provide investment services in respect of the
AIF.

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