ESMA DELAYS OPINION ON THE EXTENSION OF THE AIFMD PASSPORT TO NON-EU AIFMS AND NON-EU AIFS
In accordance with the Alternative Investment Fund Managers Directive ("AIFMD"), the European Securities and Markets Authority ("ESMA") was due to issue an opinion to the European Commission, Council and Parliament on the extension of the AIFMD passport to non-EU AIFMs and non-EU AIFs by 22 July 2015. ESMA advised today that it is still in the process of finalising its opinion and intends to publish this during the week beginning 28 July 2015.
ESMA PUBLISHES UPDATE TO AIFMD Q&A
On 21 June 2015, ESMA updated its Q&A on the application of AIFMD (the "Q&A").
Reporting to national regulators
ESMA has clarified a number of technical matters relating to reporting to EU Member State regulators under Articles 3, 24 and 42 of AIFMD, including the following:
- ESMA previously advised that when a
non-EU AIFM reports information to a Member State regulator under
Article 42, only the AIFs marketed in that Member State have to be
taken into account for the purpose of the reporting.
Under the updated Q&A, ESMA provides that where a Member States applies ESMA's opinion on collection of additional information under Article 24(5) of the AIFMD ("ESMA's Opinion"), AIFMs should also report information on non-EU master AIFs not marketed in the EU that have either EU feeder AIFs or non-EU feeder AIFs marketed in the EU.
To date, Ireland has not applied this aspect of ESMA's Opinion. However, this position should be kept under review as the Central Bank has reserved the right to request this information in the future;
- Guidance is provided on reporting assets under management ("AUM") in Euro and other currencies;
- ESMA previously clarified that AIFMs should not report any information on AIFs for the reporting period during which the AIFs were created. However, the updated Q&A further clarifies that AIFMs should include AIFs created during the reporting period in the total AUM of the AIFM for that reporting period.
Calculation of total value of assets under management
In its previous Q&A, ESMA clarified that, when calculating the total AUM, assets acquired through leverage should be included. ESMA has further clarified that where a short sale occurs with assets being received, AIFMs should include the assets received in the calculation of the total AUM.
This article contains a general summary of developments and is not a complete or definitive statement of the law. Specific legal advice should be obtained where appropriate.