Updated ESMA Q&A on AIFMD

On 30 September 2014, ESMA published an updated version of its Q&A on the application of the AIFMD.

Section III on reporting to national competent authorities under Articles 3, 24 and 42 of the AIFMD is supplemented by additional questions. Two of these additional questions relate to the reporting obligations applying to a non-EU AIFM:

- the answer to Question 36 confirms that the reporting obligations of a non-EU AIFM to national competent authorities of an EU Member State does not depend on the actual marketing period of the AIF in this EU Member State but rather on the existence of investors in the AIF in the jurisdiction of this EU Member State.

Therefore, a non-EU AIFM must continue to report to national competent authorities after the marketing period has ended unless it confirms that no investors in the jurisdiction of the authority concerned are invested in the AIF(s).

- the answer to Question 37 indicates that the reporting frequency applying to a non-EU AIFM must be calculated on the basis of (i) all the EU AIFs managed by this non-EU AIFM and (ii) all the AIFs it markets in the European Union. Therefore, a unique reporting frequency must be calculated and applied in all Member States where the non-EU AIFM markets its AIFs.

A new Section VII on Delegation has also been added and Question 1 of this Section deals with the case of an AIFM which manages multiple AIFs "When assessing whether any delegation of portfolio management and/or risk management by the AIFM results in the AIFM becoming a letter-box entity as referred to in Article 20 of the AIFMD, should the assessment be made at the level of the AIFM or at the level of each AIF?" ESMA confirms that the assessment must be carried out at the level of each individual AIF and not on the basis of a group of AIFs.