ESMA publishes discussion paper and launches consultation on “key aspects” of the Alternative Investment Fund Managers Directive

On 23 February 2012, the European Securities and Markets Authority (“ESMA”) published a discussion paperon “key aspects” of the Alternative Investment Fund Managers Directive (“AIFMD”). This discussion paper contains ESMA’s draft policy approach concerning the interpretation of certain key aspects of the AIFMD, namely: 

(e)    the range of functions that an Alternative Investment Fund Manager (“AIFM”) must carry out in accordance with the AIFM;
(f)    the criteria based on which national competent authorities can determine whether or not an entity falls under the scope of the definition of “Alternative Investment Fund” (“AIF”) under the AIFMD;

(g)    the interrelation between the AIFMD and the Undertakings for Collective Investment in Transferable Securities Directive, e.g. which services may entities that are authorised under one of these directives, provide under the other;
(h)    clarification concerning the treatment of authorised “investment firms” and “banks” under the AIFMD, in particular the fact that these types of entities may not be authorised under the AIFMD.

In light of the feedback received, ESMA will develop formal proposals for draft regulatory technical standards, which will be submitted to the market by mean of a consultation paper. The results of that public consultation will be used by ESMA in finalising the draft regulatory technical standards to be submitted to the European Commission for endorsement by the end of 2012.