Delegated regulation 2014/694 - Supplement to Directive 2011/61/EU with regard to regulatory technical standards determining types of alternative investment fund managers - Main contents

EN

Official Journal of the European Union

L 183/18

It is important that regulatory technical standards determining types of AIFMs supplement the rules in Directive 2011/61/EU so that certain requirements of the Directive are applied to AIFMs in a uniform manner.

It is desirable to distinguish whether an AIFM is managing AIFs of the open-ended or closed-ended type or both in order to apply correctly the rules on liquidity management and the valuation procedures of Directive 2011/61/EU to AIFMs.

The distinguishing factor in determining whether an AIFM is managing AIFs of the open-ended or closed-ended type should be the fact that an open-ended AIF repurchases or redeems its shares or units with its investors, at the request of any of its shareholders or unitholders, prior to the commencement of its liquidation phase or wind-down and does so according to the procedures and frequency set out in its rules or instruments of incorporation, prospectus or offering documents. A decrease in the capital of the AIF in connection with distributions according to the rules or instruments of incorporation of the AIF, its prospectus or offering documents, including one that has been authorised by a resolution of the shareholders or unitholders passed in accordance with those rules or instruments of incorporation, prospectus or offering documents of the AIF, should not be taken into account for the purpose of determining whether or not the AIF is of the open-ended type.

The repurchases or redemptions which should be relevant for determining whether an AIFM is managing AIFs of the open-ended or closed-ended type should only be the ones made out of the assets of the AIF. Therefore, whether an AIF's shares or units can be negotiated on the secondary market and are not repurchased or redeemed by the AIF should not be taken into account for the purpose of determining whether or not the AIF is of the open-ended type.

An AIFM that manages one or more open-ended AIFs and one or more closed-ended AIFs at the same time should apply to each AIF the specific rules relating to the relevant type of AIF.

Any change in the redemption policy of an AIF implying that the AIF may be considered no longer as being an AIF of the open-ended type or an AIF of the closed-ended type, should lead the AIFM to cease to apply the rules relating to the old redemption policy of the AIF it manages and to apply the rules relating to the new redemption policy of such AIF.

For the purposes of Article 61(3) and (4) of Directive 2011/61/EU account should be taken of the legal structures under which closed-ended AIFs were established before 22 July 2013. When the Directive was adopted no harmonised definition existed in the Union regarding the legal structure of closed-ended AIFs, which varied between Member States. This reality is reflected in the text of the Directive, which qualifies as closed-ended AIFs certain existing legal structures that have no redemption rights exercisable during the period of 5 years from the date of the initial investment. Article 61(3) and (4)...