EUU, Alm.del - 2020-21 - Bilag 276: Notat samt høringssvar vedr. gennemgang af FAIF-direktivet

Europaudvalget 2020-21
EUU Alm.del Bilag 276
Offentligt

Public consultation on the review of the

alternative investment fund managers

directive (AIFMD)

Fields marked with * are mandatory.

Introduction

The

short version

of this consultation will soon also be available in

23 European Union official

languages.

If you wish to respond in one of these languages, please wait until then to provide your replies.

In the European Union, alternative investment funds (AIFs) are collective investment funds that are not covered by

Direc

tive 2009/65/EC on undertakings for collective investment in transferable securities (UCITS).

AIFs vary in terms of their

investment strategies, markets, asset types and legal forms. Alternative investment fund managers (AIFMs) manage

the AIFs, which are often established for saving or income generating purposes while supporting broader economic

activity, and include venture capital and private equity funds, real estate funds, hedge funds and fund of funds. The

activities of AIFMs are governed by the

alternative investment fund managers Directive 2011/61/EU (AIFMD).

The AIFMD aims to facilitate greater AIF market integration, improve coherence in the actions taken by supervisory

authorities to address potential risks posed to the financial system while ensuring appropriate levels of investor

protection. To this end, an AIFM is required to obtain licence from its home supervisor and adhere to the operational

requirements laid down in the AIFMD and its supplementing

AIFMR,

including taking measures to manage risks and to

ensure the requisite transparency regarding the activities of their managed AIFs.

On 10 June 2020, the European Commission submitted its

report to the European Parliament and the Council on the

scope and the application of the AIFMD.

The report concludes that while the AIFMD has contributed to the creation of

the EU AIF market, provided a high-level protection to investors and facilitated monitoring of risks to financial stability,

there are a number of areas where the legal framework could be improved.

Given the European Commission’s ongoing

efforts to develop the capital markets union (CMU), this consultation seeks the views of stakeholders on how to achieve

a more effective and efficient functioning of the EU AIF market as part of the overall financial system.

Structure of the public consultation

First, this public consultation focuses on improving the utility of the AIFM passport and the overall competitiveness of the

EU AIF industry. The analysed data indicates that the appropriate and balanced regulation of financial markets benefits

investors as well as the overall economy. The questions in the section on

authorisation/scope

seek views from

stakeholders on the scope of the AIFM licence, its potential extension to smaller AIFMs and level playing field

EUU, Alm.del - 2020-21 - Bilag 276: Notat samt høringssvar vedr. gennemgang af FAIF-direktivet

concerns in relation to the regulation of other financial intermediaries, like MiFID firms, credit institutions or UCITS

managers that provide similar services.

The

investor protection

section raises questions on investor access that take into account the differences between

retail and professional investors. The same consideration is raised in the questions on a potential EU law pre-

calibration of an AIF that would be suitable for marketing to retail. Adequacy of disclosure requirements are covered

including the specific requirements that could be added, changed or removed from the current rulebook. Other

questions address the alleged ambiguities in the depositary regime and the lack of the depositary passport.

Stakeholders are also invited to comment on potential improvements to the AIFMD rules on valuation.

The issue of a level playing field is also covered in the section dedicated to

international issues.

Views are sought on

how best to achieve the equitable treatment of non-EU AIFs and securing a wider choice of AIFs for investors while at

the same time ensuring that EU AIFMs are not exposed to unfair competition or are otherwise disadvantaged.

The section dedicated to

financial stability

seeks stakeholder views on how to ensure NCAs and AIFMs have the tools

necessary to effectively mitigate and deal with systemic risks. Specific input regarding improvements to the supervisory

reporting template provided in the AIFMR is requested with a particular focus on the increased activities of AIFs in the

credit market. The consultation suggests the potential for more centralised supervisory reporting and improved

information sharing among the relevant supervisors. A revised supervisory setup and cooperation measures among the

competent authorities are another focus of this consultation.

The rules on

investment in private companies

are examined with a view to potential improvements and comments are

sought on the effectiveness of the current rules and their potential enhancement.

The

sustainability

related section seeks input on how the alternative investment sector can participate effectively in the

areas of responsible investing and the preservation of our planet.

Questions are posed as regards the treatment of

UCITS,

particularly where a more coherent approach may be

warranted. This includes the question of a single licence for AIF and UCITS managers, harmonised metrics for leverage

calculation and reporting on the use of liquidity management tools.

Finally, stakeholders are welcome to raise other AIFMD related issues and submit proposals on how to otherwise

improve the AIFMD legal framework with regard to any issues not directly addressed in the consultation.

Given the broad nature of the questions, well-substantiated, evidence/data backed answers and proposals will be

particularly instructive. Clearly linking responses to the contributions already received in the

public consultation reviewing

MiFID II,

informing digital strategy of the EU or any other relevant consultations would be particularly useful.

This public consultation aims to gather views from all interested parties, in particular collective investment fund managers

and investment firms, AIF distributors, industry representatives, investors and investor protection associations. The

questions 1, 2 and 3 as well as the section Investor protection, except for part (b) thereof, are available in all the EU

official languages to gather citizens’ views on these matters.

The consultation will be open for fourteen weeks.

Please note:

In order to ensure a fair and transparent consultation process

only responses received through our

online questionnaire will be taken into account

and included in the report summarising the responses. Should you

have a problem completing this questionnaire or if you require particular assistance, please contact

fisma-aifmd-

[email protected].

More information on

this consultation

EUU, Alm.del - 2020-21 - Bilag 276: Notat samt høringssvar vedr. gennemgang af FAIF-direktivet

the consultation document

the consultation strategy

the acronyms used in this consultation

investment funds

the protection of personal data regime for this consultation

About you

Language

of my contribution

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Spanish

EUU, Alm.del - 2020-21 - Bilag 276: Notat samt høringssvar vedr. gennemgang af FAIF-direktivet

Swedish

am giving my contribution as

Academic/research

institution

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Company/business

organisation

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Non-governmental

organisation (NGO)

Environmental organisation

Non-EU citizen

EU citizen

Public

authority

Trade union

Other

Please

specify in which role you are giving your contribution:

First

name

Surname

(this won't be published)

Scope

International

Local

National

Regional

Organisation

name

EUU, Alm.del - 2020-21 - Bilag 276: Notat samt høringssvar vedr. gennemgang af FAIF-direktivet

255 character(s) maximum

EUU, Alm.del - 2020-21 - Bilag 276: Notat samt høringssvar vedr. gennemgang af FAIF-direktivet

Organisation

size

Micro (1 to 9 employees)

Small (10 to 49 employees)

Medium (50 to 249 employees)

Large (250 or more)

Transparency register number

255 character(s) maximum

Check if your organisation is on the

transparency register.

It's a voluntary database for organisations seeking to influence EU decision-

making.

Country

of origin

Please add your country of origin, or that of your organisation.

Afghanistan

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Republic

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and Miquelon

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and the

Grenadines

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EUU, Alm.del - 2020-21 - Bilag 276: Notat samt høringssvar vedr. gennemgang af FAIF-direktivet

lands

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EUU, Alm.del - 2020-21 - Bilag 276: Notat samt høringssvar vedr. gennemgang af FAIF-direktivet

Aruba

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and the South

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/Burma

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Jan Mayen

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Bolivia

Bonaire Saint

Eustatius and

Saba

Bosnia and

Herzegovina

Botswana

Bouvet Island

Brazil

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Ocean Territory

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Islands

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Guinea

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Netherlands

New Caledonia

New Zealand

Nicaragua

Niger

Taiwan

Tajikistan

Tanzania

Thailand

The Gambia

Haiti

Nigeria

Timor-Leste

EUU, Alm.del - 2020-21 - Bilag 276: Notat samt høringssvar vedr. gennemgang af FAIF-direktivet

Bulgaria

Heard Island

and McDonald

Islands

Niue

Togo

Burkina Faso

Burundi

Honduras

Hong Kong

Norfolk Island

Northern

Mariana Islands

Tokelau

Tonga

Cambodia

Cameroon

Hungary

Iceland

North Korea

North

Macedonia

Trinidad and

Tobago

Tunisia

Canada

Cape Verde

Cayman Islands

Central African

Republic

Chad

Chile

China

India

Indonesia

Iran

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Norway

Oman

Pakistan

Palau

Turkey

Turkmenistan

Turks and

Caicos Islands

Tuvalu

Ireland

Isle of Man

Israel

Palestine

Panama

Papua New

Guinea

Uganda

Ukraine

United Arab

Emirates

United

Kingdom

Christmas

Island

Clipperton

Cocos (Keeling)

Islands

Colombia

Comoros

Congo

Cook Islands

Costa Rica

Italy

Paraguay

Jamaica

Japan

Peru

Philippines

United States

Minor Outlying

Islands

Jersey

Jordan

Kazakhstan

Kenya

Kiribati

Pitcairn Islands

Poland

Portugal

Puerto Rico

Qatar

Uruguay

US Virgin

Islands

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Vatican City

EUU, Alm.del - 2020-21 - Bilag 276: Notat samt høringssvar vedr. gennemgang af FAIF-direktivet

Côte

d’Ivoire

Croatia

Kosovo

Kuwait

Réunion

Romania

Venezuela

Vietnam

EUU, Alm.del - 2020-21 - Bilag 276: Notat samt høringssvar vedr. gennemgang af FAIF-direktivet

Cuba

Curaçao

Cyprus

Czechia

Kyrgyzstan

Laos

Latvia

Lebanon

Russia

Rwanda

Saint

Barthélemy

Saint Helena

Ascension and

Tristan da

Cunha

Wallis and

Futuna

Western

Sahara

Yemen

Zambia

Democratic

Republic of the

Congo

Denmark

Field

Lesotho

Saint Kitts and

Nevis

Zimbabwe

Liberia

Saint Lucia

of activity or sector (if applicable):

Accounting

Auditing

Banking

Credit rating agencies

Insurance

Pension provision

Investment management (e.g. hedge funds, private equity funds, venture

capital funds, money market funds, securities)

Market infrastructure operation (e.g. CCPs, CSDs, Stock exchanges)

Social entrepreneurship

Other

Not applicable

at least 1 choice(s)

Please

specify your activity field(s) or sector(s):

Publication

privacy settings

EUU, Alm.del - 2020-21 - Bilag 276: Notat samt høringssvar vedr. gennemgang af FAIF-direktivet

The Commission will publish the responses to this public consultation. You can choose whether you would like your details to be made

public or to remain anonymous.

EUU, Alm.del - 2020-21 - Bilag 276: Notat samt høringssvar vedr. gennemgang af FAIF-direktivet

Anonymous

Only your type of respondent, country of origin and contribution will be

published. All other personal details (name, organisation name and size,

transparency register number) will not be published.

Public

Your personal details (name, organisation name and size, transparency

I agree with the

personal data protection provisions

Choose your questionnaire

Please indicate whether you wish to respond to the

citizens’ version

general questions and 14 investor protection questions) or full version (102

questions) of the questionnaire.

The short version only covers the general aspects of the AIFMD regime and

investor protection matters under the AIFMD.

The full version contains 85 additional questions addressing more technical

features of the AIFMD regulatory regime.

Note that only the questions that are part of the short version are also available

in all EU languages.

I want to respond only to the

short version of the

questionnaire

(3 + 14 questions)

I want to respond to the

full version of the

questionnaire

(102 questions)

I. Functioning of the AIFMD regulatory framework, scope

and authorisation requirements

The central pillar of the AIFMD regulatory regime is a European licence or a so-called AIFM passport. EU AIFMs are

able to manage and market EU AIFs to professional investors across the Union with a single authorisation. This section

EUU, Alm.del - 2020-21 - Bilag 276: Notat samt høringssvar vedr. gennemgang af FAIF-direktivet

seeks to gather views on potential improvements to the AIFMD legal framework to facilitate further integration of the EU

AIF market. The objective is to look at the specific regulatory aspects where their potential refining could enhance utility

of the AIFM passport, gathering data on concrete costs and benefits of the suggested improvements, at the same time

ensuring that the investor and financial stability interests are served in the best way. A number of questions focus on the

level playing field between AIFMs and other financial intermediaries.

Question 1. What is your overall experience with the functioning of the AIFMD

legal framework?

Very satisfied

Satisfied

Neutral

Unsatisfied

Very unsatisfied

Don’t know / no opinion / not relevant

Question 2. Do you believe that the effectiveness of the AIFMD is impaired by

national legislation or existing market practices?

Fully agree

Somewhat agree

Neutral

Somewhat disagree

Fully disagree

Don’t know / no opinion / not relevant

Question 2.1 Please explain your answer to question 2, providing concrete

examples and data to substantiate it:

5000 character(s) maximum

including spaces and line breaks, i.e. stricter than the MS Word characters counting method.

The AIFMD has succeeded in creating a harmonised and stringent regulatory and supervisory

framework for the activities within the Union of all AIFMs and an internal market for AIFs that

still allows Member States to implement necessary national legislation.

For sub-threshold AIFMs, however, the AIFMD has not succeeded in creating a harmonised

and stringent regulatory and supervisory framework for the activities within the Union. The

AIFMD leaves discretion to Member States on what to require from such sub-threshold AIFMs

which in turn has seen different approaches across the EU. This is a clear example of where

the AIFMD is impaired by the national legislation or existing market practices.

Question 3. Please specify to what extent you agree with the statements below:

EUU, Alm.del - 2020-21 - Bilag 276: Notat samt høringssvar vedr. gennemgang af FAIF-direktivet

The AIFMD has been successful in achieving its objectives as follows:

Don't

(fully

disagree)

(somewhat

disagree)

(neutral)

(somewhat

agree)

(fully

agree)

know -

opinion -

Not

applicable

creating

internal

market for

AIFs

enabling

monitoring

risks to the

financial

stability

providing

high level

investor

protection

EUU, Alm.del - 2020-21 - Bilag 276: Notat samt høringssvar vedr. gennemgang af FAIF-direktivet

Other statements:

Don't

(fully

disagree)

(somewhat

disagree)

(neutral)

(somewhat

agree)

(fully

agree)

know -

opinion -

Not

applicable

The scope of

the AIFM

license is

clear and

appropriate

The AIFMD

costs and

benefits are

balanced (in

particular

regarding the

regulatory

and

administrative

burden)

EUU, Alm.del - 2020-21 - Bilag 276: Notat samt høringssvar vedr. gennemgang af FAIF-direktivet

The different

components

of the AIFMD

legal

framework

operate well

together to

achieve the

AIFMD

objectives

The AIFMD

objectives

correspond to

the needs

and problems

in EU asset

management

and financial

markets

The AIFMD

has provided

EU AIFs and

AIFMs added

Value

EUU, Alm.del - 2020-21 - Bilag 276: Notat samt høringssvar vedr. gennemgang af FAIF-direktivet

Question 3.1 Please explain your answer to question 3, providing quantitative

and qualitative reasons to substantiate it:

5000 character(s) maximum

including spaces and line breaks, i.e. stricter than the MS Word characters counting method.

We agree that the AIFMD has enabled and supported the creation of an internal market for

AIFs (and AIFMs) within the EU and also enabled ESMA and National Competent Authorities

(NCAs) in monitoring risks relating to the financial stability on this market.

The AIFMD has provided a regulatory framework for AIFMs in regards of e.g. governance,

competences, portfolio and risk management, valuation and delegation, and this framework

ensures investors a certain level of investor protection.

However, in terms of provisions on the subject of investor protection, we believe the AIFMD is

lacking. This is also seen in light of the objectives of the AIFMD in which investor protection

plays a small part. This vacuum is particularly evident with regard to retail investors for which

investor protection rules are subject to national regulation, thus facilitating different levels of

investor protection within the EU.

To that end, we do not believe that the AIFMD objectives correspond to the needs and

problems within the EU asset management and financial markets. Furthermore, the increase in

AIFMs as well as investments in alternatives (by both professional investors and retail

investors) demands an increased focus on investor protection. On other aspects of the current

AIFMD objectives we find the AIFMD legal framework operates well .

Lastly, we disagree that the scope of the AIFM license is clear and appropriate. This is

elaborated in the questions below.

Any legislative amendments should address these issues by e.g. expanding the scope to

include investor protection, further clarify the scope of AFIM license and ensure appropriate

investor protection rules.

Question 4. Is the coverage of the AIFM licence appropriate?

Yes

Don’t know / no opinion / not relevant

Question 4.1 What other functions would you suggest adding to the AIFM

i c e n c e

Please explain your choice also considering related safeguards and

requirements, such as protecting against potential conflicts of interest, where

appropriate, disadvantages and benefits of the proposed approach:

5000 character(s) maximum

including spaces and line breaks, i.e. stricter than the MS Word characters counting method.

EUU, Alm.del - 2020-21 - Bilag 276: Notat samt høringssvar vedr. gennemgang af FAIF-direktivet

The AIFM license covers a number of different activities. The scope would benefit from a

clarification of what activities an AIFM can and must perform in terms of marketing and selling

shares in AIFs managed by the AIFM.

Currently it is not clear whether an AIFM can provide investment advice for shares in AIFs

managed by the AIFM (within in the scope of an AIFM license) and, secondly, whether that is a

requirement.

According to the ELTIF regulation a AIFM must perform a suitability test and be authorised to

provide the services referred to in points (a) and (b)(i) of Article 6(4) of the AIFMD in order to

market shares in an ELTIF to retail investors. We see this as an opportunity for the AIFMD to

clarify whether the scope of the AIFM license in itself encompasses such requirements or not.

See also the answer to question 10.

Question 5. Should AIFMs be permitted to invest on own account?

EUU, Alm.del - 2020-21 - Bilag 276: Notat samt høringssvar vedr. gennemgang af FAIF-direktivet

Yes

Don’t know / no opinion / not relevant

Question 5.1 If yes, what methods and limitations to this possibility should

be imposed ?

Please explain your proposition in terms of conflicts of interest, benefits and

disadvantages as well as costs, where possible:

5000 character(s) maximum

including spaces and line breaks, i.e. stricter than the MS Word characters counting method.

Question 5.1 Please explain your answer to question 5:

5000 character(s) maximum

including spaces and line breaks, i.e. stricter than the MS Word characters counting method.

If an AIFM are to be permitted to invest on own account, AIFMs should be subject to the

requirements which MiFID-entities investing on own account are subject to. This would

ensure a level playing field.

Question 6. Are securitisation vehicles effectively excluded from the scope of

the AIFMD?

Yes

Don’t know / no opinion / not relevant

Question 6.1. What elements would you suggest introducing into the AIFMD

to exclude securitisation vehicles from the scope of the AIFMD

EUU, Alm.del - 2020-21 - Bilag 276: Notat samt høringssvar vedr. gennemgang af FAIF-direktivet

effectively

and

reducing

regulatory

arbitrage

possibilities?

Please explain:

5000 character(s) maximum

including spaces and line breaks, i.e. stricter than the MS Word characters counting method.

We find that the definition the exemption for securitisation vehicles in article 3 of the AIFMD is

sufficient.

Question 7. Is the AIFMD provision providing that it does not apply to

employee participation schemes or employee savings schemes effective?

Yes

Don’t know / no opinion / not relevant

Question 7.1 Please explain your answer to question 7:

5000 character(s) maximum

including spaces and line breaks, i.e. stricter than the MS Word characters counting method.

We find that the definition the exemption for employee participation schemes or employee

savings schemes in article 3 of the AIFMD is sufficient.

Question 8. Should the AIFM capital requirements be made more risk-

sensitive and proportionate to the risk-profile of the managed AIFs?

Yes

EUU, Alm.del - 2020-21 - Bilag 276: Notat samt høringssvar vedr. gennemgang af FAIF-direktivet

Don’t know / no opinion / not relevant

Question 8.1 Please explain your answer to question 8, presenting benefits

and disadvantages of your approach as well as potential costs:

5000 character(s) maximum

including spaces and line breaks, i.e. stricter than the MS Word characters counting method.

We do not find it necessary that AIFM capital requirements is made more risk- sensitive and

proportionate to the risk-profile of the managed AIFs. This aspect is addressed in Article 9(7)

that requires additional capital to cover potential professional liability risks due to operational

risks.

We believe the risk-profile of the managed AIFs should be reflected in other areas of the

AIFMD, e.g. the organisation, portfolio and risk management, compliance and valuation.

However, we find that the capital requirements should be aligned for e.g. investment firms

when AIFMs providing ancillary services. This is clarified in the answer to question 12.

Question 9. Are the own funds requirements of the AIFMD appropriate given

the existing initial capital limit of EUR 10 million although not less than one

quarter of the preceding year's fixed overheads?

Yes

Don’t know / no opinion / not relevant

Question 9.1 Please explain your answer to question 9, detailing any

suggestion of an alternative policy option, and presenting benefits and

disadvantages of the entertained options as well as costs:

5000 character(s) maximum

including spaces and line breaks, i.e. stricter than the MS Word characters counting method.

N/A

Question 10. Would the AIFMD benefit from further clarification or

harmonisation of the requirements concerning AIFM authorisation to provide

ancillary services under Article 6 of the AIFMD?

Fully agree

EUU, Alm.del - 2020-21 - Bilag 276: Notat samt høringssvar vedr. gennemgang af FAIF-direktivet

Somewhat agree

Neutral

Somewhat disagree

Fully disagree

Don’t know /

no opinion / not relevant

Question 10.1 Please explain your answer to question 10, presenting benefits

and disadvantages of the entertained options as well as costs:

5000 character(s) maximum

including spaces and line breaks, i.e. stricter than the MS Word characters counting method.

We fully agree that the AIFMD would benefit from further clarification and harmonisation of the

requirements concerning AIFM authorization to provide ancillary services under Article 6 of the

AIFMD. We also refer to previous work at the level of for example ESMA which also indicates

the need for further legislative clarifications on the scope.

As stated in responses to questions 3 and 4, we find that the scope of the AIFM license is

unclear. This is especially the case for an AIFM that provides ancillary services. We find it

appropriate to further clarify the types of investors for which ancillary services can be provided

(i.e. can the service only be provided for professional investors or also retail investors),

whether the services are limited to certain financial instruments and/or the investment strategy

in the managed AIFs, and to what extent MiFID-rules applies.

While Article 6(6) of the AIFMD include cross-references to certain MiFID rules, legal

uncertainties remain as to the precise application of the MiFID and/or AIFMD rules in some

cases. By way of example, questions have arisen whether and to which extent MiFID and/or

AIFMD/UCITS rules could be applied to discretionary portfolio management or investment

advice on assets that do not qualify as

‘financial

instruments’ pursuant to Section C of Annex I

of MiFID, taking into account that the relevant MiFID provisions do not apply to them.

We also see merit in providing a greater regulatory consistency and level playing field between

AIFMD and MiFID in order to ensure that entities providing similar types of services, such as

marketing, are subject to similar regulatory standards. To this end, there would be merit in

clarifying the AIFMD and MiFID frameworks to ensure that AIFs and their managers and MiFID

investment firms always remain subject to the same regulatory standards, while providing the

same type of services.

Further, practice has shown that NCAs have divergent views on whether AIFMs could be

permitted to perform business activities other than those explicitly listed in Article 6 of the

AIFMD. As a result, the list of permissible business activities of AIFMs in some Member States

is broader than in others.

Lastly, we see merit in clarifying to what extent the services in Article 6(4) can be provided

within the management of AIFs. Legal uncertainty remain as to whether the mentioned

activities may only be secondary activity and whether it can be extended beyond the scope of

the investment strategies in the managed AIFs. The legal uncertainty makes room for

regulatory arbitrage by MiFID investment firms applying for an AIFM license.

To avoid regulatory arbitrage and ensure investor protection, legislative amendments should

ensure that AIFMs providing ancillary services are subject to the same regulatory standards

across the EU, while providing the same type of services, and clarify the scope of ancillary

services provided by an AIFM.

EUU, Alm.del - 2020-21 - Bilag 276: Notat samt høringssvar vedr. gennemgang af FAIF-direktivet

Without such clarification an unlevel playing field between AIFMs and entities subject to MiFID-

rules (e.g. investment firms) will continue.

Question 11. Should the capital requirements for AIFMs authorised to carry

out ancillary services under Article 6 of the AIFMD be calculated in a more risk-

sensitive manner?

Yes

Don’t know / no opinion / not relevant

Question 11.1 Please explain your answer to question 11, presenting benefits

and disadvantages of your suggested approach as well as potential costs of

the change, where possible:

5000 character(s) maximum

including spaces and line breaks, i.e. stricter than the MS Word characters counting method.

See the answer to question 8.

Question 12. Should the capital requirements established for AIFMs carrying

out ancillary services under Article 6 of the AIFMD correspond to the capital

requirements applicable to the investment firms carrying out identical

services?

Yes

Don’t know / no opinion / not relevant

Question 12.1 Please explain your answer to question 12, presenting benefits

and disadvantages of your suggested approach as well as potential costs of

the change, where possible:

5000 character(s) maximum

including spaces and line breaks, i.e. stricter than the MS Word characters counting method.

In order to ensure a level playing field and avoid regulatory arbitrage we find the capital

requirements established for AIFMs carrying out ancillary services under Article 6 of the AIFMD

should correspond to the capital requirements applicable to the investment firms carrying out

identical services.

Please also see the answer to question 10.

EUU, Alm.del - 2020-21 - Bilag 276: Notat samt høringssvar vedr. gennemgang af FAIF-direktivet

Question 13. What are the changes to the AIFMD legal framework needed to

ensure a level playing field between investment firms and AIFMs providing

ompeti ng

services ?

Please present benefits and disadvantages of your suggested approach as

well as potential costs of the change, where possible:

5000 character(s) maximum

including spaces and line breaks, i.e. stricter than the MS Word characters counting method.

Please refer to the answer for question 10.

As highlighted in the answer to question 10, a level playing field between investment firms

and AIFMs providing competing services requires clarification on different areas. First of all,

clarification of the overall scope of the license to provide ancillary services as an AIFM.

Secondly, harmonization between the AIFMD and MiFID-II is necessary to ensure that both

types of entities are subject to the same requirements which in turn will ensure the same level

of investor protection.

Question 14. Would you see value in introducing in the AIFMD a Supervisory

Review and Evaluation Process (SREP) similar to that applicable to the credit

institutions?

Yes

Don’t know / no opinion / not relevant

Question 14.1 Please explain your answer to question 14, presenting benefits

and disadvantages of your suggested approach as well as potential costs of

the change, where possible:

5000 character(s) maximum

including spaces and line breaks, i.e. stricter than the MS Word characters counting method.

We do not see value in introducing a SREP in the AIFMD identical to what is applicable to

credit institutions. We believe such a SREP would be disproportionate when taking into the

consideration of different nature and structures of AIFs, the vast number of AIFs compared to

credit institutions as well as the difference in regulatory set-up for the credit institutions which

the SREP caters for.

Question 15. Is a professional indemnity insurance option available under the

AIFMD useful?

EUU, Alm.del - 2020-21 - Bilag 276: Notat samt høringssvar vedr. gennemgang af FAIF-direktivet

Yes

Don’t know / no opinion / not relevant

Question 15.1 Please explain your answer to question 15, presenting benefits

and disadvantages of your suggested approach as well as potential costs of

the change, where possible:

5000 character(s) maximum

including spaces and line breaks, i.e. stricter than the MS Word characters counting method.

To our understanding the option of a professional indemnity insurance to cover potential professional liability

risks is a useful tool for AIFMs.

Question 16. Are the assets under management thresholds laid down in Article

3 of the AIFMD appropriate?

Yes

Don’t know / no opinion / not relevant

Question 16.1 If not, please suggest different thresholds and explain your

choice, including benefits and disadvantages of your suggested approach as

well as potential costs of the change, where possible:

5000 character(s) maximum

including spaces and line breaks, i.e. stricter than the MS Word characters counting method.

We do not find the assets under management thresholds laid down in Article 3 of the AIFMD

appropriate. These AIFMs entail the same risk as licensed AIFMs. Furthermore, an increase in

the number of sub-threshold AIFs have been seen creating a sub-market for AIFMs that are not

subject to same regulatory framework.

We find it appropriate that sub-threshold AIFMs are also subject to the AIFMD (either fully or

partially). This is to ensure both a level playing field between AIFMs and to ensure that the

investor protection provided by the AIFMD is also enjoyed by investors at all levels, also when

investing in AIFs managed by sub-threshold AIFMs.

Question 17. Does the lack of an EU passport for the sub-threshold AIFMs

impede capital raising in other Member States?

Yes

Don’t know / no opinion / not relevant

EUU, Alm.del - 2020-21 - Bilag 276: Notat samt høringssvar vedr. gennemgang af FAIF-direktivet

Question 17.1 Please further detail your answer to question 17,

substantiating it, also with examples of the alleged barriers:

5000 character(s) maximum

including spaces and line breaks, i.e. stricter than the MS Word characters counting method.

EUU, Alm.del - 2020-21 - Bilag 276: Notat samt høringssvar vedr. gennemgang af FAIF-direktivet

We do not find that the lack of an EU passport for the sub-threshold AIFMs impeded capital raising in other

Member States. A sub-threshold AIF has the option to opt-in and thereby enjoying the benefit of the AIFMD.

Question 18. Is it necessary to provide an EU level passport for sub-

threshold AIFMs?

Yes

Don’t know / no opinion / not relevant

Question 18.1 If yes, should the regulation of the sub-threshold AIFM differ

from the regulation of the full-scope AIFMs under the AIFMD and in which

Please explain your proposition, including costs/benefits of the proposed

approach:

5000 character(s) maximum

including spaces and line breaks, i.e. stricter than the MS Word characters counting method.

N/A

Question 18.1 Please explain your answer to question 18:

5000 character(s) maximum

including spaces and line breaks, i.e. stricter than the MS Word characters counting method.

We strongly disagree that it is necessary to provide an EU level passport for sub-

threshold AIFMs. As explained in question 17, a sub-threshold AIFM can opt-in and

thereby enjoy the benefits of the AIFMD.

By providing a passport for sub-threshold investor protection is currently impeded as

these AIFMs are not subject to any harmonized regulation, but only a requirement to

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Question 19. What are the reasons for EuVECA managers to opt in the AIFMD

regime instead of accessing investors across the EU with the EuVECA label?

Please explain your answer:

5000 character(s) maximum

including spaces and line breaks, i.e. stricter than the MS Word characters counting method.

We have no opinion on this matter.

Question 20. Can the AIFM passport be improved to enhance cross-border

marketing and investor access?

Yes

Don’t know / no

opinion / not relevant

Question 20.1 If so, what specific measures would you suggest?

Please explain your suggestions, presenting benefits and disadvantages as

well as potential costs thereof, where possible:

5000 character(s) maximum

including spaces and line breaks, i.e. stricter than the MS Word characters counting method.

N/A

Question 20.1 Please explain your answer to question 20:

5000 character(s) maximum

EUU, Alm.del - 2020-21 - Bilag 276: Notat samt høringssvar vedr. gennemgang af FAIF-direktivet

including spaces and line breaks, i.e. stricter than the MS Word characters counting method.

We find that the provision on AIFM passports are appropriate in terms of ensuring

AIFMs can manage and market AIFs within the EU.

However, we wish to stress that there should not be a passport for marketing AIFs

to retail investors.

II. Investor protection

The AIFMD aims to protect investors by requiring AIFMs to act with the requisite transparency before and after investors

commit capital to a particular AIF. Conflicts of interest must be managed in the best interest of the investors in the AIF.

AIFMs must also ensure that the AIF’s assets are valued in accordance with appropriate and consistent valuation

procedures established for an each AIF. The AIF assets are then placed in safekeeping with an appointed depositary

that also oversees AIF’s cash flows and ensures regulatory compliance.

Questions in this section cover the topic of investor categorisation referencing to MiFID II, stopping short of repeating the

same questions that have been raised in its

recent public consultation on MiFID II,

rather inviting comments on the most

appropriate way forward. Views are also sought on the conditions that would make it possible to open up the AIF universe

to a larger pool of investors while considering their varying degrees of financial literacy and risk awareness. Examples of

redundant or insufficient investor disclosures are invited.

Greater clarity on stakeholders’ views of the AIFMD rules on depositaries is sought in particular where such rules may

require clarification or amending. The introduction of the depositary passport is desirable from an internal market point

of view, but stakeholders are invited to propose other potential legal solutions, if any, that could address the issue of the

short supply and concentration of depository services in smaller markets.

a) Investor classification and investor access

Question 21. Do you agree that the AIFMD should cross-refer to the client

categories as defined in the MIFID II (Article 4(1)(ag) of the AIFMD)?

Yes

Don’t know / no opinion / not relevant

If no, how could the investor classification under the AIFMD be improved?

Please give examples where possible and present benefits and

disadvantages of your suggested approach as well as potential costs of the

change:

5000 character(s) maximum

including spaces and line breaks, i.e. stricter than the MS Word characters counting method.

EUU, Alm.del - 2020-21 - Bilag 276: Notat samt høringssvar vedr. gennemgang af FAIF-direktivet

Svar:

Question 21.1 Please explain your answer to question 21:

5000 character(s) maximum

including spaces and line breaks, i.e. stricter than the MS Word characters counting method.

Currently the AIFMD is cross-refering to the MiFID II. As investor categories are handled in

MiFID II this approach should continue. Overall, we do not find it necessary to introduce a

separate or specific investor category for AIFM and AIFs. The AIFM should mirror changes and

clarifications in MiFID II. This ensures similar investor protection across legislation for the

similar category of investor.

If introduction of new categories of investors under the AIFMD were to be contemplated (such

“semi-professional”

“well

informed” investors), these should be accompanied by

appropriate investor protection rules and all passporting activities should be restricted to

concern only marketing to professional investors.

Question 22. How AIFM access to retail investors can be

improved?

Please give examples where possible and present benefits and

disadvantages of your suggested approach as well as potential costs of the

change:

5000 character(s) maximum

including spaces and line breaks, i.e. stricter than the MS Word characters counting method.

To improve access for retail investors to AIFs, the AIFMD requires a shift and thus a greater

focus on (retail) investor protection. Currently the AIFMD is in its essence intended for only

professional investors as marketing towards retail investors requires a Member State’s

permission in its jurisdiction.

Increased access to retail investors would in our view necessarily include introducing MiFID

provisions such as investment advice and suitability test, adapting the overall objective of the

AIFMD and expanding on its provisions.

If the AIFMD is further opened to retail investors, the AFIMD should still allow Member States

to impose stricter requirements on the AIFM or the AIF as a precondition for marketing to retail

investors compared to the requirements applicable to the AIFs marketed to professional

investors.

Please also see the answer to question 21.

Question 23. Is there a need to structure an AIF under the EU law that could

be marketed to retail investors with a passport?

Yes

Don’t know / no opinion / not relevant

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Question 23.1 If yes, what are the requirements that should be imposed on

s u c h

A I F s ?

Please give examples where possible and present benefits and

disadvantages of your suggested approach as well as potential costs of the

change:

5000 character(s) maximum

including spaces and line breaks, i.e. stricter than the MS Word characters counting method.

N/A

Question 23.1 Please explain your answer to question 23:

5000 character(s) maximum

including spaces and line breaks, i.e. stricter than the MS Word characters counting method.

We do not find that there is need to structure a certain type of AIF under the EU law that

could be marketed to retail investors with a passport. Such structures could impede

Member States’ competence to impose stricter requirements on the AIFM or the AIF (in

accordance with article 43 of the AFIMD) thereby opening up for regulatory

circumvention.

Instead, we find that the AIFMD would benefit from provisions on investor protection set

at a high minimum level across the EU. This would entail the introduction of MiFID

provisions (see also the answer to question 22).

In that context inspiration from other regulations could be sought. According to the

ELTIF regulation, additional requirements are imposed on the AIFM and AIF when

distributing ELTIFs to retail investors such as performing a suitability test, ensure the

retail investor does not invest an aggregate amount exceeding 10 % of that investor's

financial instrument portfolio, ensuring the legal form of an ELTIF marketed to retail

investors does not lead to any further liability for the retail investor, and provide the

retail investor a withdrawal period of 2 weeks. There is no reason why other types of

AIFs targeting retail investors should not be subject to these provisions.

The AFIMD should however still allow Member States to impose stricter requirements

on the AIFM or the AIF as a precondition for marketing to retail investors than the

requirements applicable to the AIFs marketed to professional investors in order to

ensure adequate investor protection.

b) depositary regime

Question 24. What difficulties, if any, the depositaries face in exercising their

functions

accordance

with

the

AIFMD?

Please provide your answer by giving concrete examples identifying any

barriers and associated costs.

EUU, Alm.del - 2020-21 - Bilag 276: Notat samt høringssvar vedr. gennemgang af FAIF-direktivet

5000 character(s) maximum

including spaces and line breaks, i.e. stricter than the MS Word characters counting method.

Depositaries are not obliged to have access to the cash accounts of the alternative investment fund’s subsidiaries.

Neither is the depositary obliged to verify and monitor the cash flow of the alternative investment fund's

subsidiaries. Many such alternative investment funds are structured in such a way that the vast majority of cash

flows (both in numbers of cash flows and amounts being transferred) are made from the subsidiaries, either

between subsidiaries or external transactions. This means that the depository lacks significant insight into the

cash flows of the structure of the alternative investment fund.

It should be considered whether cash flow monitoring should (based on the same principles that apply to asset

verification) be performed on a look through principle, so that the depositary has access to the accounts of the

alternative investment funds’ subsidiaries and is obliged to monitor and reconcile and verify cash flows of the

subsidiaries.

Depositaries may face difficulties and challenges monitoring non-financial assets (real estate, infrastructures etc.).

The depositary can monitor and check a deed, but this does not necessarily guarantee that the asset is actually

there. For example, a real estate may have been damaged or burned to ground which do not show up on the

ground. While the depositaries are subject to requirements to ensure the assets, the AIFMD would benefit from

clarifying to what extent depositaries are obliged to control/monitor whether the assets is still there.

Question 25. Is it necessary and appropriate to explicitly define in the AIFMD

tri-party collateral management services?

Yes

Don’t know / no opinion / not relevant

Question 25.1 Please explain your answer to question 25:

5000 character(s) maximum

including spaces and line breaks, i.e. stricter than the MS Word characters counting method.

To clarify uncertainties and ensure uniform understanding, legislative amendments should

define and clarify tri-party collateral management services within the AIFMD as well as provide

a regulatory framework.

Question 26. Should there be more specific rules for the delegation process,

where the assets are in the custody of tri-party collateral managers?

Yes

Don’t know / no opinion / not relevant

Question 26.1 Please explain your answer to question 26, presenting benefits

and disadvantages of your suggested approach as well as potential costs of

the change, where possible:

EUU, Alm.del - 2020-21 - Bilag 276: Notat samt høringssvar vedr. gennemgang af FAIF-direktivet

5000 character(s) maximum

including spaces and line breaks, i.e. stricter than the MS Word characters counting method.

Please see the answer to question 25

Question 27. Where AIFMs use tri-party

collateral managers’ services, which

of the aspects should be explicitly regulated by the AIFMD?

Please select as many answers as you like

the obligation for the asset manager to provide the depositary with the

contract it has concluded with the tri-party collateral manager

the flow of information between the tri-party collateral manager and the

depositary

the frequency at which the tri-party collateral manager should transmit the

positions on a fund-by-fund basis to the depositary in order to enable it to

record the movements in the financial instruments accounts opened in its

books

no additional rules are necessary, the current regulation is appropriate

other

Please explain why you think the obligation for the asset manager to provide

the depositary with the contract it has concluded with the tri-party collateral

manager

should

explicitly

regulated

the

AIFMD.

Please present benefits and disadvantages of this approach as well as

potential costs of the change, where possible:

5000 character(s) maximum

including spaces and line breaks, i.e. stricter than the MS Word characters counting method.

Svar:

N/A

Please explain why you think the flow of information between the tri-party

collateral manager and the depositary should be explicitly regulated by the

Please present benefits and disadvantages of this approach as well as

EUU, Alm.del - 2020-21 - Bilag 276: Notat samt høringssvar vedr. gennemgang af FAIF-direktivet

potential costs of the change, where possible:

5000 character(s) maximum

including spaces and line breaks, i.e. stricter than the MS Word characters counting method.

Svar:

N/A

Please explain why you think the frequency at which the tri-party collateral

manager should transmit the positions on a fund-by-fund basis to the

depositary in order to enable it to record the movements in the financial

instruments accounts opened in its books should be explicitly regulated

t h e

A I F M D .

Please present benefits and disadvantages of this approach as well as

potential costs of the change, where possible:

5000 character(s) maximum

including spaces and line breaks, i.e. stricter than the MS Word characters counting method.

Svar:

N/A

Please specify what are the other aspect(s) that should be explicitly regulated

b y

t h e

A I F M D .

Please present benefits and disadvantages of this/these approach(es) as well

as potential costs of the change, where possible:

5000 character(s) maximum

including spaces and line breaks, i.e. stricter than the MS Word characters counting method.

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We find that no additional rules are necessary within the AIFMD, but that rules and guidelines should be

elaborated in the AIFMR and/or ESMA guidelines.

Question 28. Are the AIFMD rules on the prime brokers clear?

Yes

Don’t know / no opinion / not relevant

Question 28.1 Please explain your answer to question 28, providing concrete

examples of ambiguities and where available suggesting improvements:

5000 character(s) maximum

including spaces and line breaks, i.e. stricter than the MS Word characters counting method.

When taken into account the rules in the AIFMR, we find that the rules are sufficiently clear.

Question 29. Where applicable, are there any difficulties faced by

depositaries in obtaining the required reporting from prime brokers?

Yes

Don’t know / no opinion / not relevant

Question 29.1 Please explain your answer to question 29, providing concrete

examples and suggesting improvements to the current rules and presenting

benefits and disadvantages of the potential changes as well as costs:

5000 character(s) maximum

including spaces and line breaks, i.e. stricter than the MS Word characters counting method.

EUU, Alm.del - 2020-21 - Bilag 276: Notat samt høringssvar vedr. gennemgang af FAIF-direktivet

Svar:

Question 30. What additional measures are necessary at EU level to address

the difficulties identified in the response to the preceding question?

Please explain your answer providing concrete examples:

5000 character(s) maximum

including spaces and line breaks, i.e. stricter than the MS Word characters counting method.

Question 31. Does the lack of the depositary passport inhibit efficient

functioning of the EU AIF market?

Yes

Don’t know / no opinion / not relevant

Question 31.1 Please explain your answer to question 31:

5000 character(s) maximum

including spaces and line breaks, i.e. stricter than the MS Word characters counting method.

EUU, Alm.del - 2020-21 - Bilag 276: Notat samt høringssvar vedr. gennemgang af FAIF-direktivet

A depositary is an integrated part of an AIF. We therefore find it important that the supervision

with a depositary continues as the main rule to be a matter for the Member State in which the

AIFM is registered. A passport may impair the depositaries from fulfilling its tasks of, among

other things, monitoring and safe-keeping, which in turn leads to impairment of investor

protection.

Question 32. What would be the potential benefits and risks associated with

the

introduction

the

depositary

passport?

Please explain your position, presenting benefits and disadvantages of your

suggested approach as well as potential costs of the change, where possible:

5000 character(s) maximum

including spaces and line breaks, i.e. stricter than the MS Word characters counting method.

Please see the answer to question 31.

Question 33. What barriers are precluding introducing the depositary

p a s s p o r t ?

Please explain your position providing concrete examples and evidence,

where available, of the existing impediments:

5000 character(s) maximum

including spaces and line breaks, i.e. stricter than the MS Word characters counting method.

EUU, Alm.del - 2020-21 - Bilag 276: Notat samt høringssvar vedr. gennemgang af FAIF-direktivet

Please see the answer to question 31.

Question 34. Are there other options that could address the lack of supply of

depositary

services

smaller

markets?

Please explain your position presenting benefits and disadvantages of your

suggested approach as well as potential costs of the change:

5000 character(s) maximum

including spaces and line breaks, i.e. stricter than the MS Word characters counting method.

The lack of supply of depositary services in smaller markets could be related to the fact that a

small market equals that the potential turnover for depositaries is limited. Since it is costly to

have a setup that may provide depositary services even for one client, small markets do not allow

for large supply of depositary services.

Question 35. Should the investor CSDs be treated as delegates of the

depositary?

Yes

Don’t know / no opinion / not relevant

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Question 35.1 Please explain your answer to question 35, providing concrete

examples and suggesting improvements to the current rules and presenting

benefits and disadvantages as well as costs:

5000 character(s) maximum

including spaces and line breaks, i.e. stricter than the MS Word characters counting method.

We find that the AIFMD should be clarified to allow depositaries not to apply the

delegation rules to CSDs in their capacity as Issuer CSDs. Depositaries should be

required to apply the delegation rules to CSDs in their capacity as Investor CSDs.

c) transparency and conflicts of interest

Question 36. Are the mandatory disclosures under the AIFMD sufficient for

investors to make informed investment decisions?

Yes

Don’t know / no opinion / not relevant

Question 36.1 If not, what elements of the mandatory disclosures under the

AIFMD

c o uld

a m e n d e d?

Please explain your position presenting benefits and disadvantages of the

potential changes as well as costs:

5000 character(s) maximum

including spaces and line breaks, i.e. stricter than the MS Word characters counting method.

The mandatory disclosures are sufficient in terms of professional investors, but it is insufficient

in the event a Member States allow the marketing of AIFs to retail investors.

If the AIFMD is to open up to retail investors, legislative amendments should expand on these

disclosures to ensure a more standardized and clear presentation for retail investors.

Question 37. What elements of mandatory disclosure requirements, if any,

should

differ

depending

the

type

investor?

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Please explain your position, presenting benefits and disadvantages of the

potential changes as well as costs:

5000 character(s) maximum

including spaces and line breaks, i.e. stricter than the MS Word characters counting method.

In particular elements such as investment strategy, risk, liquidity management (for open-ended

AIFs) and costs/fees should differ depending on the type of investor. A retail investor must be

presented with this information in a more standardized and clear manner than a professional

investor, as a retail investor does not have the same qualifications to compare and evaluate

these elements, including differences.

These principles are known in e.g. PRIIP KIDs and disclosures within the AIFMD should be

aligned with those principles.

Question 38. Are there any additional disclosures that AIFMs could be obliged

to make on an interim basis to the investors other than those required in the

annual report?

Yes

Don’t know / no opinion / not relevant

Question 38.1 Please explain your answer to question 38, presenting benefits

and disadvantages of the potential changes as well as costs:

5000 character(s) maximum

including spaces and line breaks, i.e. stricter than the MS Word characters counting method.

Question 39. Are the AIFMD rules on conflicts of interest appropriate and

proportionate?

Yes

EUU, Alm.del - 2020-21 - Bilag 276: Notat samt høringssvar vedr. gennemgang af FAIF-direktivet

Don’t know / no opinion / not relevant

Question 39.1 If not, how could the AIFMD rules on conflicts of interest be

a m e n d e d ?

Please provide your suggestions, presenting benefits and disadvantages of

the potential changes as well as costs:

5000 character(s) maximum

including spaces and line breaks, i.e. stricter than the MS Word characters counting method.

Considering the rules in the AIFMR, we find that the AIFMD rules on conflicts of interest

are appropriate and proportionate.

d) valuation rules

Question 40. Are the AIFMD rules on valuation appropriate?

Yes

Don’t know / no opinion / not relevant

Question 40.1 Please explain your answer to question 40, presenting benefits

and disadvantages of the potential changes as well as costs:

5000 character(s) maximum

including spaces and line breaks, i.e. stricter than the MS Word characters counting method.

Due to the Prudent Person Principle there are different requirements for AIFMs and insurance

and reinsurance undertakings. Considering that the latter group invests in AIFs, legislative

amendments should harmonize the requirements for AIFMS and insurance and reinsurance

undertakings.

In terms of the current provisions we find that they are otherwise appropriate. However, there is

a need for expansion on the provisions in the AIFMR and guidelines differentiating on different

assets (for example between liquid and non-liquid assets).

Question 41. Should the AIFMD legal framework be improved further given

the experience with asset valuation during the recent pandemic?

Yes

EUU, Alm.del - 2020-21 - Bilag 276: Notat samt høringssvar vedr. gennemgang af FAIF-direktivet

Don’t know / no opinion / not relevant

Question 41.1 Please explain your answer to question 41, presenting benefits

and disadvantages of the potential changes as well as costs:

5000 character(s) maximum

including spaces and line breaks, i.e. stricter than the MS Word characters counting method.

We have not identified any problems regarding the functioning of the valuation rules in the

AIFMD that are related to the recent pandemic.

Nevertheless, we support further clarification regarding the valuation rules if necessary. We

find that such further clarification is a matter of ESMA investigation and guidelines.

Question 42. Are the AIFMD rules on valuation clear?

Yes

Don’t know / no opinion / not relevant

Question 42.1 Please explain your answer to question 42:

5000 character(s) maximum

including spaces and line breaks, i.e. stricter than the MS Word characters counting method.

The AIFMD rules on valuation use broad formulations because the rules must be able to take

into account many different types of AIFM. Broad formulations have the benefits that they are

able to take into account many different types of AIFM’s, but have the disadvantage that it may

be unclear what is sufficient to be compliance when investing in different types of assets. This

can create challenges for both companies and national regulators.

AIFMD rules on valuation can become more clear taking the above into account, but we find

that this is a matter best suited for the AIFMR and/or guidelines.

By for example, clarification of a

“fair

valuation” should be clarified.

Question 43. Are the AIFMD rules on valuation sufficient?

Yes

Don’t know / no opinion / not relevant

Question 43.1 Please explain your answer to question 43, explaining what

rules on valuation are desirable to be included in the AIFMD legal framework:

EUU, Alm.del - 2020-21 - Bilag 276: Notat samt høringssvar vedr. gennemgang af FAIF-direktivet

5000 character(s) maximum

including spaces and line breaks, i.e. stricter than the MS Word characters counting method.

Taking the provisions of the AIFMR into consideration, we find that the AIFMD rules on

valuation are sufficient, if the rules become more clear. However, we find that further

elaboration within the AIFMR and ESMA guidelines would be welcomed.

The AIFMD rules on valuation uses broad formulations because the rules must be able to take

into account many different types of AIFM. Broad formulations with in the AIFMD are important

as they have the benefits of taking into account the different types of AIFs.

Question 44. Do you consider that it should be possible in the asset valuation

process to combine input from internal and external valuers?

Yes

Don’t know / no

opinion / not relevant

Question 44.1 Please substantiate your answer to question 44, also in terms

of benefits, disadvantages and costs:

5000 character(s) maximum

including spaces and line breaks, i.e. stricter than the MS Word characters counting method.

We find that the AIFMD in its current form does not prevent such interpretation of the current

rules, but that the AIFMD would benefit from clarifying that input from internal and external

valuers can be used, including a clarification on the interaction between the internal valuation

function and the external valuer.

The opportunity to combine input from external and internal valuers will be an advantage in

those situations where the valuation is largely based on subjectivity which is the case with

many assets that AIF’s invest in. The comparison gives the AIFM the opportunity to identify

outliers and weaknesses in their valuation processes.

Question 45. In your experience, which specific aspect(s) trigger liability of a

Please provide concrete examples, presenting costs linked to the described

occurrence:

5000 character(s) maximum

including spaces and line breaks, i.e. stricter than the MS Word characters counting method.

In our experience both

“gross

negligence’ and

‘simple

negligence’ may trigger liability.

However, the extent and possible triggers are also set out in general rules of the agreement

EUU, Alm.del - 2020-21 - Bilag 276: Notat samt høringssvar vedr. gennemgang af FAIF-direktivet

between the AIFM and the valuer.

Question 46. In your experience, what measures are taken to mitigate/offset the

liability

valuers

the

jurisdiction

your

choice?

Please provide concrete examples, presenting benefits and disadvantages as

well as costs of the described approach:

5000 character(s) maximum

including spaces and line breaks, i.e. stricter than the MS Word characters counting method.

The extent and possible triggers are often regulated in the agreement between the AIFM and

the valuer. We have no further knowledge of this element.

III. International relations

Considering the global nature of financial services, the AIFMD interacts with the third country regulatory regimes. By

adopting the AIFMD the EU co-legislators sought to put in place a legal framework for tackling risks emanating from AIF

activities that may impact the EU financial stability, market integrity and investor protection. The questions below are

seeking views on where to strike the balance of having a functioning, efficient AIF market and ensuring that it operates

under the conditions of a fair competition without undermining financial stability. Besides posing general questions on

the competitiveness of the EU AIF market, this section seeks views on how the EU market could interact with international

partners in the area governed by the AIFMD. The focus is on the appropriateness of the AIFMD third country passport

regime and delegation rules.

Question 47. Which elements of the AIFMD regulatory framework support the

compet it ivenes s

the

AIF

industry?

Please explain providing concrete examples and referring to data where

available:

EUU, Alm.del - 2020-21 - Bilag 276: Notat samt høringssvar vedr. gennemgang af FAIF-direktivet

5000 character(s) maximum

including spaces and line breaks, i.e. stricter than the MS Word characters counting method.

The creation of a harmonised and stringent regulatory and supervisory framework for the

activities within the Union of all AIFMs and an internal market for AIFs have provided an open

market within the EU and thereby increased competition within this market.

This provides investors with AIFMs that subject to harmonized regulation

–

i.e. an investor

knows that it is dealing with a licensed AIFM that are subject to certain rules (this is however

not true for sub-threshold AIFMs) independent of the Member States which the AIFM is

domiciled in.

Question 48. Which elements of the AIFMD regulatory framework could be

altered

enhance

competitiveness

the

AIF

industry?

Please explain providing concrete examples and referring to data where

available:

5000 character(s) maximum

including spaces and line breaks, i.e. stricter than the MS Word characters counting method.

We would like to stress that any alterations to enhance the competitiveness of the EU AIF

industry should not jeopardize or hinder investor protection.

Question 49. Do you believe that national private placement regimes create

an uneven playing field between EU and non-EU AIFMs?

Yes

Don’t know / no opinion / not relevant

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Question 49.1 If you believe there is an uneven playing field between EU and

non-EU AIFMs, which action would you suggest to address the

issue?

Please explain your choice, presenting benefits and disadvantages of the

potential changes to the AIFMD as well as potential costs associated with your

preferred option:

5000 character(s) maximum

including spaces and line breaks, i.e. stricter than the MS Word characters counting method.

A non-EU AIFM is not subject to the AIFMD and it may be subject to a lesser requirement. As a

consequence, it is necessary that the non-EU AIFMs comply with extra rules. The EU AIFM will

have undergone a very comprehensive authorization process and on the basis of this have

access to the other EU countries. The NCA’s cannot be sure that this is the case regarding non

EU AIFMs. Thus, many NCAs have additional rules that non-EU AIFM have to comply with

before they can market funds in the EU.

This does admittedly create an uneven playing field because non-EU AIFMs have to comply to

additional, but divergent rules before they can access the EU market.

Question 50. Are the delegation rules sufficiently clear to prevent creation of

letter-box entities in the EU?

Yes

Don’t know / no opinion / not relevant

Question 50.1 Please explain your answer to question 50:

5000 character(s) maximum

including spaces and line breaks, i.e. stricter than the MS Word characters counting method.

Together with provisions in the AIFMR, the provisions on delegation is sufficiently clear to

prevent creation of letter-box entities in the EU.

The AIFMR clarifies that an AIFM must provide at least portfolio or risk management

–

i.e. only

one core activity can be delegated.

Question 51. Are the delegation rules under the AIFMD/AIFMR appropriate to

ensure effective risk management?

Yes

Don’t know / no opinion / not relevant

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Question 51.1 Please explain your answer to question 51, presenting benefits

and disadvantages of the current rules and where available providing

concrete examples substantiating your answer:

5000 character(s) maximum

including spaces and line breaks, i.e. stricter than the MS Word characters counting method.

The effectiveness of a delegated risk management function depends on the extent to which the

AIFM is capable of ensuring adequate monitoring and evaluation of the delegated function. The

monitoring is dependent on how good the AIFM is to ensure measurable reporting criteria.

We find that the current provisions are not appropriate when delegation is conferred on a third-

country undertaking. Since third-country undertakings are not regulated by the same

regulations there are a risk of regulatory arbitrage. The AIFMD would benefit from imposing

stricter rules when delegation of risk management (and portfolio management) is conferred to

third-country undertakings.

Question 52. Should the AIFMD/AIFMR delegation rules, and in particular

Article 82 of the Commission Delegated Regulation (EU) No 231/2013, be

complemented?

Yes

Don’t know / no opinion / not relevant

Question 52.1 Should the delegation rules be complemented with:

Please select as many answers as you like

quantitative criteria

a list of core or critical functions that would be always performed internally

and may not be delegated to third parties

other requirements

Please explain why you think the AIFMD/AIFMR delegation rules should be

complemented

with

quantitative

criteria,

presenting

benefits

and

disadvantages of the potential changes as well as costs:

5000 character(s) maximum

including spaces and line breaks, i.e. stricter than the MS Word characters counting method.

Svar:

N/A

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Please explain why you think the AIFMD/AIFMR delegation rules should be

complemented with a list of core or critical functions, presenting benefits and

disadvantages of the potential changes as well as costs:

5000 character(s) maximum

including spaces and line breaks, i.e. stricter than the MS Word characters counting method.

Providing a list of core or critical functions that would be always performed internally and may

not be delegated to third parties would prevent letter-box entities and ensure greater legal

certainty on what tasks must always be performed by an AIFM.

Please explain with what other requirements the AIFMD/AIFMR delegation

rules should be complemented, presenting benefits and disadvantages of the

potential changes as well as costs:

5000 character(s) maximum

including spaces and line breaks, i.e. stricter than the MS Word characters counting method.

As highlighted in the answer question 52, we find that the current provisions are not

appropriate when delegation is conferred on a third-country undertaking. Since third-country

undertakings are not regulated by the same regulations there are a risk of regulatory arbitrage.

To avoid legal arbitrage, legislative amendments should impose stricter rules when delegation

of risk management (and portfolio management) is conferred to third-country undertakings.

Question 53. Should the AIFMD standards apply regardless of the location of

a third party, to which AIFM has delegated the collective portfolio

management functions, in order to ensure investor protection and to prevent

regulatory arbitrage?

Yes

Don’t know / no opinion / not relevant

Question 53.1 Please explain your answer to question 53:

5000 character(s) maximum

EUU, Alm.del - 2020-21 - Bilag 276: Notat samt høringssvar vedr. gennemgang af FAIF-direktivet

including spaces and line breaks, i.e. stricter than the MS Word characters counting method.

Delegation adds regulatory complexity and provides for additional supervisory challenges for

NCAs, in particular where the delegate is established in another Member State or outside of

the EU. Depending on the regulatory license of the delegate, questions may also arise about

regulatory level playing field and possible circumvention of AIFMD regulatory standards.

In the case of delegation to another regulated EU entity, this is often a question of regulatory

consistency between the various EU regulatory regimes, while this is not the case of delegation

to non-EU delegates. In the latter case, the regulatory arbitrage and investor protection

concerns may be further increased since the non-EU delegate will not be directly subject to the

AIFMD frameworks.

Consequently, AIFs can be largely managed on a day-to-day basis by third parties (within or

outside of the EU) that are not directly subject to the AIFMD. To avoid regulatory arbitrage and

protect EU investors, legislative amendments should ensure that the management of AIFs and

UCITS is subject to the regulatory standards set out in the AIFMD and UCITS frameworks,

irrespective of the regulatory license or location of the delegate.

Question 54. Do you consider that a consistent enforcement of the delegation

rules throughout the EU should be improved?

Yes

Don’t know / no opinion / not relevant

Question 54.1 Please explain your answer to question 54, presenting benefits

and disadvantages of the current rules and where available providing

concrete examples substantiating your answer:

5000 character(s) maximum

including spaces and line breaks, i.e. stricter than the MS Word characters counting method.

To avoid unlevel playing fields and to ensure harmonization within the EU, consistent

enforcement of the delegation is important and should be improved. However, such

improvement would be best introduced through guidelines and through supervisory

convergence work in the standing committees.

Question 55. Which elements of the AIFMR delegation rules could be applied

t o

U C I T S ?

Please explain your position, presenting benefits and disadvantages of the

potential changes as well as costs:

5000 character(s) maximum

including spaces and line breaks, i.e. stricter than the MS Word characters counting method.

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We do not find that this is relevant for the AIFMD or the scope of this consultation.

IV. Financial stability

One of the main objectives of the AIFMD is to enable supervisors to appreciate and mitigate systemic risks building up

in financial markets from different sources. To this end, AIFMs are subject to periodic reporting obligations and

supervisors are equipped with certain market intervention powers to mitigate negative effects to the financial stability that

may arise from the activities on the AIF market.

The section below invites opinions whether the intervention powers and a tool-kit available to the relevant supervisors

are sufficient in times of severe market disruptions. Shared views on the adequacy of the AIFMR supervisory reporting

template will be important in rethinking the AIFM supervisory reporting obligations. According to the FSB report, markets

for leveraged loans and CLOs have grown significantly in recent years exceeding pre-crisis levels (FSB,

Vulnerabilities

associated with leveraged loans and collateralised loan obligations (CLOs), PLEN/2019/91-REV, 22 November

2019).

While most leveraged loans are originated and held by banks, investment funds are also exposed to the leveraged

loan and CLO markets. In order to assess risks to the financial stability and regulatory implications associated with

leveraged loans and CLOs it would be commendable to continue collecting the relevant data and monitoring the market.

The stakeholders are invited to cast their views on the matter.

With particular regard to the loan originating AIFs, suggestions on the optimal harmonisation of the rules that could apply

to these collective investment vehicles are welcome. Finally, questions are raised whether leverage calculation methods

could benefit from further standardisation of metrics across the AIF market and potentially also across the UCITS for the

supervisors to have a complete picture of the level of leverage engaged by the collective investment funds.

a) macroprudential tools

Question 56. Should the AIFMD framework be further enhanced for more

effectively addressing macroprudential concerns?

Yes

Don’t know /

no opinion / not relevant

Question 56.1 If yes, which of the following amendments to the AIFMD legal

framework would you suggest?

Please select as many answers as you like

improving supervisory reporting requirements

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harmonising availability of liquidity risk management tools for AIFMs across

the EU

further detailing cooperation of the NCAs in case of activating liquidity risk

management tools, in particular in situations with cross-border implications

further clarifying grounds for supervisory intervention when applying

macroprudential tools

defining an inherently liquid/illiquid asset

granting ESMA strong and binding coordination powers in market stress

situations

other

Please explain why you would suggest improving supervisory reporting

r e q u i r e m e n t s .

Please present benefits and disadvantages of the potential changes as well

as costs:

5000 character(s) maximum

including spaces and line breaks, i.e. stricter than the MS Word characters counting method.

Svar:

N/A

Please explain why you would suggest harmonising availability of liquidity

risk

management

tools

for

AIFMs

across

the

EU.

Please present benefits and disadvantages of the potential changes as well

as costs:

5000 character(s) maximum

including spaces and line breaks, i.e. stricter than the MS Word characters counting method.

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Please explain why you would suggest further detailing cooperation of the

NCAs in case of activating liquidity risk management tools, in particular in

situations

with

cross- border

implications.

Please present benefits and disadvantages of the potential changes as well

as costs:

5000 character(s) maximum

including spaces and line breaks, i.e. stricter than the MS Word characters counting method.

Please explain why you would suggest further clarifying grounds for

supervisory

intervention

when

applying

macroprudential

tools.

Please present benefits and disadvantages of the potential changes as well

as costs:

5000 character(s) maximum

including spaces and line breaks, i.e. stricter than the MS Word characters counting method.

Please explain why you would suggest defining an inherently

liquid/illiquid

Please present benefits and disadvantages of the potential changes as well

as costs:

5000 character(s) maximum

including spaces and line breaks, i.e. stricter than the MS Word characters counting method.

Please explain why you would suggest granting ESMA strong and binding

coordination

powers

market

stress

situations.

Please present benefits and disadvantages of the potential changes as well

as costs:

5000 character(s) maximum

EUU, Alm.del - 2020-21 - Bilag 276: Notat samt høringssvar vedr. gennemgang af FAIF-direktivet

including spaces and line breaks, i.e. stricter than the MS Word characters counting method.

Svar:

Please explain what other amendments to the AIFMD legal framework

w o ul d

you

s u g g e s t .

Please present benefits and disadvantages of the potential changes as well

as costs:

5000 character(s) maximum

including spaces and line breaks, i.e. stricter than the MS Word characters counting method.

Svar:

Question 56.1 Please explain your answer to question 56:

5000 character(s) maximum

including spaces and line breaks, i.e. stricter than the MS Word characters counting method.

We do not find it necessary that additional macroprudential tools are added to the AIFMD.

As will be explained in this section, we support further clarifications in the AIFMR and

additional guidelines.

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Question 57. Is there a need to clarify in the AIFMD that the NCAs’ right to

require the suspension of the issue, repurchase or redemption of units in the

public interest includes financial stability reasons?

Yes

Don’t know / no opinion / not relevant

Question 57.1 Please explain your answer to question 57, presenting benefits

and disadvantages of the potential changes to the existing rules and

processes as well as costs:

5000 character(s) maximum

including spaces and line breaks, i.e. stricter than the MS Word characters counting method.

We find the current provision to be sufficient.

Question 58. Which data fields should be included in a template for NCAs to

report relevant and timely data to ESMA during the period of the stressed

ark et

conditions ?

Please provide your suggestions, presenting benefits and disadvantages of

the potential changes as well as costs:

5000 character(s) maximum

including spaces and line breaks, i.e. stricter than the MS Word characters counting method.

Svar:

No view.

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Question 59. Should AIFMs be required to report to the relevant supervisory

authorities when they activate liquidity risk management tools?

Yes

Don’t

know / no opinion / not relevant

Question 59.1 Please explain your answer to question 59, providing costs,

benefits and disadvantages of the advocated approach:

5000 character(s) maximum

including spaces and line breaks, i.e. stricter than the MS Word characters counting method.

Liquidity risk management tools differ between AFIMs and throughout the EU, and activation of

liquidity risk management tools may be triggered by different events. Consequently, AIFMs

may handle liquidity risks differently in similar events which can be to the detriment of

investors.

To protect EU investors and ensure NCAs are aware of the different liquidity risk management

tools available and applied, legislative amendments should ensure that AFIMs report to the

relevant supervisory authorities when they activate liquidity risk management tools.

Question 60. Should the AIFMD rules on remuneration be adjusted to provide

for the de minimis thresholds?

Yes

Don’t

know / no opinion / not relevant

Question 60.1 Please explain your answer to question 60, suggesting

thresholds and justification thereof, if applicable:

5000 character(s) maximum

including spaces and line breaks, i.e. stricter than the MS Word characters counting method.

We have no observations that necessitate a minimum threshold on remuneration.

On the other hand, we would like to highlight that amendments that limit the carry

interest remuneration as part of remuneration for Private Equity/Venture Capital AIFMs

can have a detrimental effect on the VC/PE industry. Such amendments may make it

difficult to attract and retain fund managers and employees in smaller markets,

undermine the willingness of VC/PE investors to take on risk, thereby depriving

businesses of an important source of financing, and/or hinder investor protection (as

investors could be incentivised to join funds outside EU).

b) supervisory reporting requirements

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Question 61. Are the supervisory reporting requirements as provided in the

AIFMD and AIFMR’s Annex IV appropriate?

Fully agree

Somewhat agree

Neutral

Somewhat disagree

Fully disagree

Don’t know / no opinion / not relevant

Question 61.1 Please explain your answer to question 61:

5000 character(s) maximum

including spaces and line breaks, i.e. stricter than the MS Word characters counting method.

We overall agree that the reporting requirements are appropriate. However, we have identified

a need for greater portfolio data on the underlying positions and an increase on reporting

frequencies for large AIFs. Please see answers for the questions below.

Question 61.1 If you disagree that the supervisory reporting requirements as

provided in the AIFMD and AIFMR’s Annex IV appropriate, it is because of:

Please select as many answers as you like

overlaps with other EU laws

the reporting coverage is insufficient

the reporting coverage is superfluous

other

Please detail as much as possible your answer providing examples of the ove

Where possible, please provide concrete examples and where relevant

information on costs and benefits in changing the currently applicable

reporting requirements:

5000 character(s) maximum

including spaces and line breaks, i.e. stricter than the MS Word characters counting method.

There are today different reporting requirements for AIFM and MiFID entities. As they may

provide the same service, they should be subject to the same requirement. To avoid regulatory

arbitrage and to ensure level playing field, legislative amendments should ensure AIFMs are

EUU, Alm.del - 2020-21 - Bilag 276: Notat samt høringssvar vedr. gennemgang af FAIF-direktivet

subject to the same reporting requirements as MiFID entities when providing the same

services.

Please detail as much as possible your answer providing examples of the ins

ufficient

reporting

coverage.

Where possible, please provide concrete examples and where relevant

information on costs and benefits in changing the currently applicable

reporting requirements:

5000 character(s) maximum

including spaces and line breaks, i.e. stricter than the MS Word characters counting method.

Svar:

N/A

Please detail as much as possible your answer providing examples of the sup

erfluous

reporting

coverage.

Where possible, please provide concrete examples and where relevant

information on costs and benefits in changing the currently applicable

reporting requirements:

5000 character(s) maximum

including spaces and line breaks, i.e. stricter than the MS Word characters counting method.

Svar:

N/A

Please specify for for what

other reason

the supervisory reporting

requirements as provided in

the AIFMD and AIFMR’s Annex IV are not

a p p r o p r i a t e .

Please detail as much as possible your answer providing examples of the

EUU, Alm.del - 2020-21 - Bilag 276: Notat samt høringssvar vedr. gennemgang af FAIF-direktivet

superfluous

reporting

coverage.

Where possible, please provide concrete examples and where relevant

information on costs and benefits in changing the currently applicable

reporting requirements:

5000 character(s) maximum

including spaces and line breaks, i.e. stricter than the MS Word characters counting method.

Svar:

N/A

Question 62. Should the AIFMR supervisory reporting template provide a more

comprehensive portfolio breakdown?

Yes

Don’t know / no opinion / not relevant

Question 62.1 If yes, the more detailed portfolio reporting should be achieved

by:

Please select as many answers as you like

a full portfolio reporting by relevant identifier as provided for statistical

purposes

a more granular geographical breakdown of exposures (e.g. at country level)

by asset classes, investors, counterparties, and sponsorship arrangements

requiring more details on leverage

requiring more details on liquidity

requiring more details on sustainability-related information, e.g. risk

exposure and/or impacts

other

Please explain why you think the more detailed portfolio reporting should be

achieved by a full portfolio reporting by relevant identifier as provided for

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statistic al

purposes .

Please include concrete examples and, where possible, provide information

on the benefits, disadvantages and costs of implementing this proposition:

5000 character(s) maximum

including spaces and line breaks, i.e. stricter than the MS Word characters counting method.

A more detailed portfolio reporting allows for a better understanding and more efficient

monitoring and analyzing of the market. The AIFMs already have this data available.

Please explain why you think the more detailed portfolio reporting should be

achieved by more granular geographical breakdown of exposures by asset

classes,

investors,

counterparties,

and

sponsorship

arrangements.

Please include concrete examples and, where possible, provide information

on the benefits, disadvantages and costs of implementing this proposition:

5000 character(s) maximum

including spaces and line breaks, i.e. stricter than the MS Word characters counting method.

A more detailed portfolio reporting allows for a better understanding and more efficient

monitoring and analyzing of the market. The AIFMs already have this data available.

In context of investor protection, a breakdown on different types of investors (households) and

the investors’

home country

would be welcome.

Please explain why you think the more detailed portfolio reporting should be

achieved

requiring

details

leverage.

Please include concrete examples and, where possible, provide information

on the benefits, disadvantages and costs of implementing this proposition:

5000 character(s) maximum

including spaces and line breaks, i.e. stricter than the MS Word characters counting method.

A more detailed portfolio reporting allows for a better understanding and more efficient

monitoring and analyzing of the market. The AIFMs already have this data available.

Please explain why you think the more detailed portfolio reporting should be

achieved

requiring

details

liquidity.

Please include concrete examples and, where possible, provide information

on the benefits, disadvantages and costs of implementing this proposition:

EUU, Alm.del - 2020-21 - Bilag 276: Notat samt høringssvar vedr. gennemgang af FAIF-direktivet

5000 character(s) maximum

including spaces and line breaks, i.e. stricter than the MS Word characters counting method.

A more detailed portfolio reporting allows for a better understanding and more efficient

monitoring and analyzing of the market. The AIFMs already have this data available.

Please explain why you think the more detailed portfolio reporting should be

achieved by requiring more details on sustainability-related

information.

Please include concrete examples and, where possible, provide information

on the benefits, disadvantages and costs of implementing this proposition:

5000 character(s) maximum

including spaces and line breaks, i.e. stricter than the MS Word characters counting method.

Svar:

N/A

Please explain by what other ways you think the more detailed portfolio

reporting

should

achieved.

Please include concrete examples and, where possible, provide information

on the benefits, disadvantages and costs of implementing this proposition:

5000 character(s) maximum

including spaces and line breaks, i.e. stricter than the MS Word characters counting method.

Svar:

N/A

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Question 63. Should the identification of an AIF with a LEI identifier be

mandatory?

Yes

Don’t know / no opinion / not relevant

Question 63.1 Please explain your answer to question 63, presenting benefits

and disadvantages as well as costs associated with introducing such a

requirement:

5000 character(s) maximum

including spaces and line breaks, i.e. stricter than the MS Word characters counting method.

LEI is important when reporting to ESMA and other NCAs.

To ensure that NCAs have the relevant and necessary information, the identification of an AIF

with a LEI identifier should be mandatory.

Question 64. Should the identification of an AIFM with a LEI identifier be

mandatory?

Yes

Don’t know / no opinion / not relevant

Question 64.1 Please explain your answer to question 64, presenting benefits

and disadvantages as well as costs associated with introducing such a

requirement:

5000 character(s) maximum

including spaces and line breaks, i.e. stricter than the MS Word characters counting method.

See the answer to question 63.

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Question 65. Should the use of an LEI identifier for the purposes of identifying

the counterparties and issuers

of securities in an AIF’s portfolio be mandatory

for the Annex IV reporting of AIFMR?

Yes

Don’t know / no opinion / not relevant

Question 65.1 Please explain your answer to question 65, presenting benefits

and disadvantages as well as costs associated with introducing such a

requirement:

5000 character(s) maximum

including spaces and line breaks, i.e. stricter than the MS Word characters counting method.

See the answer to question 63.

Question 66. Does the reporting data adequately cover activities of loan

originating AIFs?

Yes

Don’t know / no opinion / not relevant

Question 66.1 Please explain your answer to question 66:

5000 character(s) maximum

including spaces and line breaks, i.e. stricter than the MS Word characters counting method.

Svar:

N/A

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Question 66.1. If not, what data fields should be added to the supervisory

reporting template:

Please select as many answers as you like

loans originated by AIFs

leveraged loans originated by AIFs

other

Please explain why you think loans originated by AIFs should be added as a

data fields to the supervisory reporting template, providing information on the

benefits, disadvantages and costs of implementation:

5000 character(s) maximum

including spaces and line breaks, i.e. stricter than the MS Word characters counting method.

Svar:

No view

Please explain why you think leveraged loans originated by AIFs should be

added as a data fields to the supervisory reporting template, providing

information on the benefits, disadvantages and costs of implementation:

5000 character(s) maximum

including spaces and line breaks, i.e. stricter than the MS Word characters counting method.

Svar:

N/A

Please explain what other data field(s) should be added to the supervisory

reporting template, providing information on the benefits, disadvantages and

costs of implementation:

5000 character(s) maximum

including spaces and line breaks, i.e. stricter than the MS Word characters counting method.

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Svar:

N/A

Question 67. Should the supervisory reporting by AIFMs be submitted to a

single central authority?

Yes

Don’t know / no opinion / not relevant

Question 67.1 Please explain your answer to question 67:

5000 character(s) maximum

including spaces and line breaks, i.e. stricter than the MS Word characters counting method.

To ensure effective monitoring and timely action, it is important that AIFMs report to

their individual NCAs. If AIFMs were to submit to a single central authority (e.g. ESMA)

there is a risk that NCAs are not able to effectively monitor the AIFMs under

supervision, the trends on their jurisdiction, and take the necessary timely actions.

However, for third-country AIFs we could see merit in reporting to a single central

authority, e.g. ESMA.

Question 67.1 If yes, which one:

ESMA

other options

Please explain your choice, particularly substantiating ‘other options’, and

provide information, where available, on the benefits, disadvantages and

costs of implementing each proposition:

5000 character(s) maximum

including spaces and line breaks, i.e. stricter than the MS Word characters counting method.

Svar:

EUU, Alm.del - 2020-21 - Bilag 276: Notat samt høringssvar vedr. gennemgang af FAIF-direktivet

Question 68. Should access to the AIFMD supervisory reporting data be

granted to other relevant national and/or EU institutions with responsibilities

in the area of financial stability?

Yes

Don’t know / no opinion / not relevant

Question 68.1 Please explain your answer to question 68:

5000 character(s) maximum

including spaces and line breaks, i.e. stricter than the MS Word characters counting method.

We do not have a strong opinion, but we can accept that data is granted to e.g. ERSB.

Any such permission should be subject to existing rules on information sharing,

including that it be necessary for the execution of such institutions tasks.

Question 68.1 If yes, please specify which one:

ESRB

ECB

NCBs

National macro-prudential authorities

Other

Please specify to which other relevant national and/or EU institutions the

access to the AIFMD supervisory reporting data should be granted:

5000 character(s) maximum

including spaces and line breaks, i.e. stricter than the MS Word characters counting method.

Svar:

N/A

Question 68.2 Please explain your anwser to question 68.1:

5000 character(s) maximum

including spaces and line breaks, i.e. stricter than the MS Word characters counting method.

EUU, Alm.del - 2020-21 - Bilag 276: Notat samt høringssvar vedr. gennemgang af FAIF-direktivet

Svar:

N/A

Question 69. Does the AIFMR template effectively capture links between

financial institutions?

Yes

Don’t know / no opinion / not relevant

Question 69.1 If not, what additional reporting should be required to better

capture inter-linkages between AIFMs and other financial intermediaries?

Please provide your suggestion(s) providing information on the costs,

benefits and disadvantages of each additional reporting:

5000 character(s) maximum

including spaces and line breaks, i.e. stricter than the MS Word characters counting method.

N/A

Question 69.1 Please explain your answer to question 69:

5000 character(s) maximum

including spaces and line breaks, i.e. stricter than the MS Word characters counting method.

N/A

Question 70. Should the fund classification under the AIFMR supervisory

reporting template be improved to better identify the type of AIF?

EUU, Alm.del - 2020-21 - Bilag 276: Notat samt høringssvar vedr. gennemgang af FAIF-direktivet

Yes

Don’t know / no opinion / not relevant

Question 70.1 If yes, the AIF classification could be improved by:

Please select as many answers as you like

permitting multiple choice of investment strategies in the AIFMR template

adding additional investment strategies

other

it cannot be improved, however, if a portfolio breakdown is provided to the

supervisors this can be inferred

Please explain why you think the AIF classification could be improved by per

mitting multiple choice of investment strategies in the AIFMR template,

providing information, where available, on the costs, benefits and

disadvantages of this option:

5000 character(s) maximum

including spaces and line breaks, i.e. stricter than the MS Word characters counting method.

N/A

Please explain why you think the AIF classification could be improved by addi

ng additional investment strategies, providing information, where available,

on the costs, benefits and disadvantages of this option:

5000 character(s) maximum

including spaces and line breaks, i.e. stricter than the MS Word characters counting method.

Investments in alternatives are increasing and new types of assets are seen. We suggest that

the category

“other”

could be expanded in terms of sub categories such as crypto-assets.

EUU, Alm.del - 2020-21 - Bilag 276: Notat samt høringssvar vedr. gennemgang af FAIF-direktivet

Please explain by what other ways the AIF classification could be improved,

providing information, where available, on the costs, benefits and

disadvantages of this option:

5000 character(s) maximum

including spaces and line breaks, i.e. stricter than the MS Word characters counting method.

N/A

Please explain why you think the AIF classification cannot be improved unless

a portfolio breakdown is provided to the supervisors. Please provide

information, where available, on the costs, benefits and disadvantages of this

option:

5000 character(s) maximum

including spaces and line breaks, i.e. stricter than the MS Word characters counting method.

Given the opportunity to perform an individual

“deep-dive”

the current provisions are

sufficient.

Question 70.1 Please explain your answer to question 70:

5000 character(s) maximum

including spaces and line breaks, i.e. stricter than the MS Word characters counting method.

Svar:

N/A

Question 71. What additional data fields should be added to the AIFMR

supervisory reporting template to improve capturing risks to financial

stability:

EUU, Alm.del - 2020-21 - Bilag 276: Notat samt høringssvar vedr. gennemgang af FAIF-direktivet

Please select as many answers as you like

value at Risk (VaR)

additional details used for calculating leverage

additional details on the liquidity profile of the fund’s portfolio

details on initial margin and variation margin

the geographical focus expressed in monetary values

the extent of hedging through long/short positions by an AIFM/AIF

expressed as a percentage

liquidity risk management tools that are available to AIFMs

data on non-EU master AIFs that are not marketed into the EU, but which

have an EU feeder AIF or a non-EU feeder marketed into the EU if managed

by the same AIFM

the role of external credit ratings in investment mandates

LEIs of all counterparties to provide detail on exposures

sustainability-related data, in particular on exposure to climate and

environmental risks, including physical and transition risks (e.g. shares of

assets for which sustainability risks are assessed; types and magnitudes of

risks; forward-looking, scenario-based data)

other

Please explain why value at Risk (VaR) should be added to the AIFMR

supervisory reporting template, providing as much detail as possible and

relevant examples as well as the costs, benefits and disadvantages of this

option:

5000 character(s) maximum

including spaces and line breaks, i.e. stricter than the MS Word characters counting method.

Should be available when VaR is applied, but not a requirement to apply VaR given the

broad spectrum of AIFMs and AIFs (both in terms of size and complexity)

Please explain why additional details used for calculating leverage should be

added to the AIFMR supervisory reporting template, providing as much detail

as possible and relevant examples as well as the costs, benefits and

disadvantages of this option:

EUU, Alm.del - 2020-21 - Bilag 276: Notat samt høringssvar vedr. gennemgang af FAIF-direktivet

5000 character(s) maximum

including spaces and line breaks, i.e. stricter than the MS Word characters counting method.

Svar:

N/A

Please explain why additional details on the liquidity profile of the

fund’s

portfolio should be added to the AIFMR supervisory reporting template,

providing as much detail as possible and relevant examples as well as the

costs, benefits and disadvantages of this option:

5000 character(s) maximum

including spaces and line breaks, i.e. stricter than the MS Word characters counting method.

The template should include additional details on the liquidity profile of the fund’s portfolio to

allow for a more granular reporting. This will allow better supervision.

Please explain why details on initial margin and variation margin should be

added to the AIFMR supervisory reporting template, providing as much detail

as possible and relevant examples as well as the costs, benefits and

disadvantages of this option:

5000 character(s) maximum

including spaces and line breaks, i.e. stricter than the MS Word characters counting method.

Svar:

N/A

Please explain why the geographical focus expressed in monetary values

should be added to the AIFMR supervisory reporting template, providing as

much detail as possible and relevant examples as well as the costs, benefits

and disadvantages of this option:

5000 character(s) maximum

including spaces and line breaks, i.e. stricter than the MS Word characters counting method.

Svar:

N/A

EUU, Alm.del - 2020-21 - Bilag 276: Notat samt høringssvar vedr. gennemgang af FAIF-direktivet

Please explain why the extent of hedging through long/short positions by an

AIFM/AIF expressed as a percentage should be added to the

AIFMR

supervisory reporting template, providing as much detail as possible and

relevant examples as well as the costs, benefits and disadvantages of this

option:

5000 character(s) maximum

including spaces and line breaks, i.e. stricter than the MS Word characters counting method.

Svar:

N/A

Please explain why data on non-EU master AIFs that are not marketed into the

EU, but which have an EU feeder AIF or a non-EU feeder marketed into

the EU if managed by the same AIFM should be added to the AIFMR

supervisory reporting template, providing as much detail as possible and

relevant examples as well as the costs, benefits and disadvantages of this

option:

5000 character(s) maximum

including spaces and line breaks, i.e. stricter than the MS Word characters counting method.

Svar:

N/A

Please explain why the role of external credit ratings in investment mandates

should be added to the AIFMR supervisory reporting template, providing as

much detail as possible and relevant examples as well as the costs, benefits

and disadvantages of this option:

5000 character(s) maximum

EUU, Alm.del - 2020-21 - Bilag 276: Notat samt høringssvar vedr. gennemgang af FAIF-direktivet

including spaces and line breaks, i.e. stricter than the MS Word characters counting method.

Svar:

N/A

Please explain why lEIs of all counterparties to provide detail on exposures

should be added to the AIFMR supervisory reporting template, providing as

much detail as possible and relevant examples as well as the costs, benefits

and disadvantages of this option:

5000 character(s) maximum

including spaces and line breaks, i.e. stricter than the MS Word characters counting method.

Svar:

N/A

Please explain why sustainability-related data, in particular on exposure to

climate and environmental risks, including physical and transition risks

should be added to the AIFMR supervisory reporting template, providing as

much detail as possible and relevant examples as well as the costs, benefits

and disadvantages of this option:

5000 character(s) maximum

including spaces and line breaks, i.e. stricter than the MS Word characters counting method.

Svar:

N/A

Please explain what other data fields should be added to the AIFMR

supervisory reporting template, providing as much detail as possible and

relevant examples as well as the costs, benefits and disadvantages of this

option:

5000 character(s) maximum

EUU, Alm.del - 2020-21 - Bilag 276: Notat samt høringssvar vedr. gennemgang af FAIF-direktivet

including spaces and line breaks, i.e. stricter than the MS Word characters counting method.

Svar:

N/A

Question 72. What additional data fields should be added to the AIFMR

supervisory reporting template to better capture AIF’s exposure to leveraged l

oa ns

and

CLO

market ?

Please explain your answer providing as much detail as possible and

relevant examples as well as the costs, benefits and disadvantages:

5000 character(s) maximum

including spaces and line breaks, i.e. stricter than the MS Word characters counting method.

We have no suggestions for additional data field to better cover CLO.

Question 73. Should any data fields be deleted from the AIFMR supervisory

reporting template?

Yes

Don’t know / no opinion / not relevant

Question 73.1 Please explain your answer to question 73, presenting the

costs, benefits and disadvantages of each data field suggested for deletion:

5000 character(s) maximum

EUU, Alm.del - 2020-21 - Bilag 276: Notat samt høringssvar vedr. gennemgang af FAIF-direktivet

including spaces and line breaks, i.e. stricter than the MS Word characters counting method.

We do not find that any data fields be deleted from the AIFMR supervisory reporting template.

The reported data is necessary to ensure effective monitoring and ensure timely action if

needed.

Question 74. Is the reporting frequency of the data required under Annex IV

of the AIFMR appropriate?

Yes

Don’t know / no opinion / not relevant

Question 74.1 Please explain your answer to question 74, presenting the

costs, benefits and disadvantages for a suggested change, if any:

5000 character(s) maximum

including spaces and line breaks, i.e. stricter than the MS Word characters counting method.

We find that it would beneficial if reporting frequency for large AIF were monthly rather than

quarterly. While such an increase in frequency would result in some burden to AIFMs, but this

is expected to minimal as it is an adaptation of existing quarterly reporting requirements, i.e. it

is not necessary to establish new systems, hire new personal or similar.

Question 75. Which data fields should be included in a template requiring

AIFMs to provide ad hoc information in accordance with Article 24(5) of the

AIFMD during the period of the stressed market in a harmonised and

proportiona

way ?

Please explain your answer presenting the costs, benefits and disadvantages

of implementing the suggestions:

5000 character(s) maximum

including spaces and line breaks, i.e. stricter than the MS Word characters counting method.

EUU, Alm.del - 2020-21 - Bilag 276: Notat samt høringssvar vedr. gennemgang af FAIF-direktivet

In its current form the Article 24(5) of the AIFMD leaves discretion to the Member States to

allow for different scenarios. Setting a too standardized format may harm the effectiveness of

the provision in addressing national specificities.

To ensure the effectiveness of the provision, a template should not be introduced.

Question 76. Should supervisory reporting for UCITS funds be introduced?

Yes

Don’t know / no opinion / not relevant

Question 76.1 Please explain your answer to question 78, also in terms of

costs, benefits and disadvantages:

5000 character(s) maximum

including spaces and line breaks, i.e. stricter than the MS Word characters counting method.

Today, supervisory reporting is regulated nationally. We believe that that the AIFMD review is

an occasion to consider greater harmonisation of the UCITS and AIFMD frameworks. The

European Commission should consider aligning the frameworks where appropriate, in

particular as applying different requirements to management companies which manage both

UCITS and AIFs creates additional burdens for the firms concerned and divergences in

supervisory/regulatory outcomes.

However, we do not find the AIFMD-review is the correct place to go in depths in terms of

supervisory reporting for UCITS. These discussion should be reserved for the UCITS directive.

Question 77. Should the supervisory reporting requirements for UCITS and

AIFs be harmonised?

Yes

Don’t

know / no opinion / not relevant

Question 77.1 Please explain your answer to question 79, also in terms of

costs, benefits and disadvantages:

5000 character(s) maximum

including spaces and line breaks, i.e. stricter than the MS Word characters counting method.

EUU, Alm.del - 2020-21 - Bilag 276: Notat samt høringssvar vedr. gennemgang af FAIF-direktivet

We believe that that the AIFMD review is an occasion to consider greater harmonisation of the

UCITS and AIFMD frameworks. The European Commission should consider aligning the

frameworks where appropriate, in particular as applying different requirements to management

companies which manage both UCITS and AIFs creates additional burdens for the firms

concerned and divergences in supervisory/regulatory outcomes.

Question 78. Should the formats and definitions be harmonised with other

reporting regimes (e.g. for derivates and repos, that the AIF could report using

a straightforward transformation of the data that they already have to report

under EMIR or SFTR)?

Yes

Don’t know / no opinion / not relevant

Question 78.1 If yes, please explain your response indicating the benefits and

disadvantages of a harmonisation of the format and definitions with other

reporting regimes:

5000 character(s) maximum

including spaces and line breaks, i.e. stricter than the MS Word characters counting method.

We support harmonizing reporting regimes where possible. Harmonization should streamline

and simplifies reporting for both AIFMs and NCAs, but it must also acknowledge the

differences there might be.

c) leverage

Question 79. Are the leverage calculation methods

–

gross and

commitment

–

as provided in AIFMR appropriate?

Fully agree

Somewhat agree

Neutral

Somewhat disagree

EUU, Alm.del - 2020-21 - Bilag 276: Notat samt høringssvar vedr. gennemgang af FAIF-direktivet

Fully disagree

Don’t know / no opinion / not relevant

Question 79.1 Please explain your answer to question 79 in terms of the

costs, benefits and disadvantages:

5000 character(s) maximum

including spaces and line breaks, i.e. stricter than the MS Word characters counting method.

AIFMD has two measures of leverage calculation, the gross notional exposure (GNE) method

and the commitment method. Both are used for reporting purposes. For that matter the

provisions are appropriate when taken the provisions in the AIFMR in to consideration.

IOSCO issued in December 2019 its recommendations for a framework assessing leverage in

investment funds. IOSCO recommends a two-step approach for this framework. We believe

that IOSCO recommendations give rise to a need to amend the current reporting of the gross

method calculation in Article 7 of AIFMR to ensure alignment with the IOSCO framework.

Question 80. Should the leverage calculation methods for UCITS and AIFs be

harmonised?

Yes

Don’t know / no opinion / not relevant

Question 80.1 If yes, what leverage calculation methods should be chosen to

applied

for

both

UCITS

and

AIFs?

Please explain your proposal, indicating the difficulties, costs and benefits of

applying such methodology(ies) to both UCITS and AIFs:

5000 character(s) maximum

including spaces and line breaks, i.e. stricter than the MS Word characters counting method.

Question 80.1 Please explain your answer to question 80:

5000 character(s) maximum

including spaces and line breaks, i.e. stricter than the MS Word characters counting method.

While we agree that the leverage calculation methods for UCITS and AIFs should be

harmonized, there must be different leverage calculation methods available to deal with

the differences between AIFs and UCITS.

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Question 81. What is your assessment of the two-step approach as

suggested by International Organisation of Securities Commissions

(‘IOSCO’)

in the

Framework Assessing Leverage in Investment

a s s es s

l e v e r ag e

Funds

A I F s?

published in December 2019

to collect data on the asset by asset class to

Please provide it, presenting costs, benefits and disadvantages of

implementing the IOSCO approach:

5000 character(s) maximum

including spaces and line breaks, i.e. stricter than the MS Word characters counting method.

Please see the answer to question 79.

Question 82. Should the leverage calculation metrics be harmonised at EU

level?

Yes

Don’t know / no opinion / not

relevant

Question 82.1 Please explain your answer to question 82, presenting the

costs, benefits and disadvantages of your chosen approach:

5000 character(s) maximum

including spaces and line breaks, i.e. stricter than the MS Word characters counting method.

We agree that the leverage calculation metrics should be harmonised at EU level, but we

find that

this is best introduced through AIFMR or guidelines

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Question 83. What additional measures may be required given the reported

increase in CLO and leveraged loans in the financial system and the risks

those

may

present

macro-prudential

stability?

Please provide your suggestion(s) including information, where available, on

the costs and benefits, advantages and disadvantages of the proposed

measures:

5000 character(s) maximum

including spaces and line breaks, i.e. stricter than the MS Word characters counting method.

We have no suggestions for additional measures to better cover CLO.

Question 84. Are the current AIFMD rules permitting NCAs to cap the use of

leverage appropriate?

Yes

Don’t know / no opinion / not relevant

Question 84.1 Please explain your answer to question 86, in terms of the costs,

benefits and disadvantages:

5000 character(s) maximum

including spaces and line breaks, i.e. stricter than the MS Word characters counting method.

It is our understanding that the current AIFMD rules are appropriate

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Question 85. Should the requirements for loan originating AIFs be

harmonised at EU level?

Yes

Don’t know / no opinion / not relevant

Question 85.1 Please explain your answer to question 85:

5000 character(s) maximum

including spaces and line breaks, i.e. stricter than the MS Word characters counting method.

To ensure the objectives of the AIFMD, we believe that any additional or specific

requirements for loan originating AIFs should be harmonized at EU level.

Question 85.1 If yes, which of the following options would support this

harmonisation:

Please select as many answers as you like

limit interconnectedness with other financial intermediaries

impose leverage limits

impose additional organisational requirements for AIFMs

allow only closed-ended AIFs to originate loans

provide for certain safeguards to borrowers

permit marketing only to professional investors

impose diversification requirements

impose concentration requirements

other

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Please explain why you think limiting interconnectedness with other financial

intermediaries

would

support

this

harmonisation.

Please provide information, where available, on the costs and benefits,

advantages and disadvantages of this option. Concrete examples are

welcome:

5000 character(s) maximum

including spaces and line breaks, i.e. stricter than the MS Word characters counting method.

N/A

Please explain why you think

h a r m o n i s a t i o n .

imposing leverage limits would support this

Please provide information, where available, on the costs and benefits,

advantages and disadvantages of this option. Concrete examples are

welcome:

5000 character(s) maximum

including spaces and line breaks, i.e. stricter than the MS Word characters counting method.

A loan originating AIF will be nature be a risky investment, and only more risky if applied in the

context of COVID-19. To handle and limit this risk, requirements on the maximum level of

leverage is benficial.

Please explain why you think imposing additional

requirements

for

AIFMs

would

support

this

organisational

harmonisation.

Please provide information, where available, on the costs and benefits,

advantages and disadvantages of this option. Concrete examples are

welcome:

5000 character(s) maximum

including spaces and line breaks, i.e. stricter than the MS Word characters counting method.

Svar:

N/A

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Please explain why you think allowing only closed-ended AIFs to originate

loans

would

support

this

harmonisat ion.

Please provide information, where available, on the costs and benefits,

advantages and disadvantages of this option. Concrete examples are

welcome:

5000 character(s) maximum

including spaces and line breaks, i.e. stricter than the MS Word characters counting method.

The underlying asset in a loan originating AIF is by its nature illiquid. A set up as open-ended is

therefore not suited for these types of AIFs.

Please explain why you think providing for certain safeguards to borrowers

would

support

this

harmonisation.

Please provide information, where available, on the costs and benefits,

advantages and disadvantages of this option. Concrete examples are

welcome:

5000 character(s) maximum

including spaces and line breaks, i.e. stricter than the MS Word characters counting method.

N/A

Please explain why you think permiting marketing only to professional

investors

would

support

this

harmonisation.

Please provide information, where available, on the costs and benefits,

advantages and disadvantages of this option. Concrete examples are

welcome:

EUU, Alm.del - 2020-21 - Bilag 276: Notat samt høringssvar vedr. gennemgang af FAIF-direktivet

5000 character(s) maximum

including spaces and line breaks, i.e. stricter than the MS Word characters counting method.

We do not see any reason for why loan originating AIFs should receive different treatments in

terms of the investors for which these funds can be marketed towards. These funds can still be

marketed towards retail investors if they have been granted authorization according to Article

43 in the AIFMD.

Please explain why you think imposing diversification requirements would

support

t hi s

harmonisation.

Please provide information, where available, on the costs and benefits,

advantages and disadvantages of this option. Concrete examples are

welcome:

5000 character(s) maximum

including spaces and line breaks, i.e. stricter than the MS Word characters counting method.

To limit the inherent risks of loan originating AIFs, loan originating AIFs should include

requirements on diversification and concentration in the investment policy and ensure that

investors are informed.

Please explain why you think imposing concentration requirements would

support

t hi s

harmonisation.

Please provide information, where available, on the costs and benefits,

advantages and disadvantages of this option. Concrete examples are

welcome:

5000 character(s) maximum

including spaces and line breaks, i.e. stricter than the MS Word characters counting method.

To limit the inherent risks of loan originating AIFs, loan originating AIFs should include

requirements on diversification and concentration in the investment policy and ensure that

investors are informed.

Please explain what other option would support this harmonisation.

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Please provide information, where available, on the costs and benefits,

advantages and disadvantages of this option. Concrete examples are

welcome:

5000 character(s) maximum

including spaces and line breaks, i.e. stricter than the MS Word characters counting method.

Svar:

N/A

V. Investing in private companies

The AIFMD rules regulating investing in private companies aim to increase transparency and accountability of collective

investment funds holding controlling stakes in non-listed companies. This section seeks insights whether these

provisions are delivering on the stated objectives and whether there are other ways to achieve those objectives more

efficiently and effectively. Private equity industry has been growing for years from a few boutique firms

to € 3,7 T global

industry. The questions are raised therefore whether the AIFMD contains all the relevant regulatory elements that are fit

for purpose.

Question 86. Are the rules provided in Section 2 of Chapter 5 of the AIFMD

laying down the obligations for AIFMs managing AIFs, which acquire control

of non-listed companies and issuers, adequate, proportionate and effective in

enhancing transparency regarding the employees of the portfolio company

and the AIF investors?

Fully agree

Somewhat agree

Neutral

Somewhat disagree

Fully disagree

Don’t know / no opinion / not relevant

Question 86.1 Please explain your answer to question 86, providing concrete

examples and data, where available:

5000 character(s) maximum

including spaces and line breaks, i.e. stricter than the MS Word characters counting method.

N/A

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Question 87. Are the AIFMD rules provided in Section 2 of Chapter 5 of the

AIFMD whereby the AIFM of an AIF, which acquires control over a non-listed

company, is required to provide the NCA of its home Member State with

information on the financing of the acquisition necessary, adequate and

proportionate?

Fully agree

Somewhat agree

Neutral

Somewhat disagree

Fully disagree

Don’t know /

no opinion / not relevant

Question 87.1 Please explain your answer to question 87, providing concrete

examples and data, where available:

5000 character(s) maximum

including spaces and line breaks, i.e. stricter than the MS Word characters counting method.

N/A

Question 88. Are the AIFMD provisions against asset stripping in the case of

an acquired control over a non-listed company or an issuer necessary,

effective and proportionate?

Fully agree

Somewhat agree

Neutral

Somewhat disagree

Fully disagree

EUU, Alm.del - 2020-21 - Bilag 276: Notat samt høringssvar vedr. gennemgang af FAIF-direktivet

Don’t know / no opinion / not relevant

Question 88.1 Please explain your answer to question 88, providing concrete

examples and data, where available:

5000 character(s) maximum

including spaces and line breaks, i.e. stricter than the MS Word characters counting method.

We find that the current provisions are sufficient to prevent assets stripping. The provisions can

be clarified, but we see this as a matter for AIFMR or guidelines.

Question 89. How can the AIFMD provisions against asset stripping in the case

of an acquired control over a non-listed company or an issuer be

p r o v e d ?

Please provide your suggestion(s) including information, where available, on

the costs and benefits, advantages and disadvantages of the proposed

measures:

5000 character(s) maximum

including spaces and line breaks, i.e. stricter than the MS Word characters counting method.

i m

The provisions on assets stripping could be improved by clarifications. By example, clarification

on when an AIF has not used its best efforts to prevent distributions, capital reductions, share

redemptions and/or the acquisition of own shares by the company would be welcome.

As pointed out in the answer to question 88, we find that clarifications are should be handled in

the AIFMR or guidelines.

VI. Sustainability/ESG

Integrating sustainability factors in the portfolio selection and management has a double materiality perspective, in line

with the

non-financial reporting directive (2014/95)

and the

European Commission’s 2017 non-binding

guidelines on non-

financial.

Financial materiality refers in a broad sense to the financial value and performance of an investment. In this

context, sustainability risks refer to potential environmental, social or governance events or conditions that if occurring

could cause a negative material impact on the value of the investment. For example, physical risks from the

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consequences of climate change may concern a single investment/company, e.g. due to potential supply chain

disruptions or scarcity of raw materials, and may concern welfare losses for the economy as a whole. Non-financial

materiality, also known as environmental and social materiality, refers to the impacts of an investment/corporate activity

on the environment and society (i.e. negative externalities). Still, there is also a financial dimension to non-financial

materiality. Notably, so-called transition risks arise from an insufficient consideration for environmental materiality, for

instance due to potential policy changes for mitigating climate change (e.g. to regulatory frameworks, incentive

structures, carbon pricing), shifts of supply chains and end-demand, as well as stakeholder actions for mitigating climate

change.

The

disclosure regulation 2019/2088

requires a significant part of the financial services market, including AIFMs, to

integrate in their processes, including in their due diligence processes, assessment of all relevant sustainability risks that

might have a material negative impact on the financial return of an investment or advice. However, at the moment AIFMs

are not required to integrate the quantification of sustainability risks. Regulatory technical standards under the disclosure

regulation 2019/2088 will specify principal adverse impacts to be quantified or described. This section seeks to gather

input permitting better understand and assess the appropriateness of the AIFMD rules in assessing the sustainability

risks.

Question 90. The

disclosure regulation 2019/2088

defines sustainability risks,

and allows their disclosures either in quantitative or qualitative

Should AIFMs only quantify such risks?

Yes

Don’t know / no opinion / not relevant

Question 90.1 Please substantiate your answer to question 90, also in terms

of benefits, disadvantages and costs as well as in terms of available data:

5000 character(s) maximum

including spaces and line breaks, i.e. stricter than the MS Word characters counting method.

terms.

AIFMs should quantify and qualify all risks, including sustainability risks that can have a

material negative impact on the financial return of an investment or advice.

Question 91. Should investment decision processes of any AIFM integrate the

assessment of non-financial materiality, i.e. potential principal adverse

sustainability impacts?

Yes

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Don’t know / no opinion /

not relevant

Question 91.1 Please substantiate your answer to question 91, also in terms

of benefits, disadvantages and costs. Please make a distinction between

adverse impacts and principal adverse impacts and consider those types of

adverse impacts for which data and methodologies are available as well as

those where the competence is nascent or evolving:

5000 character(s) maximum

including spaces and line breaks, i.e. stricter than the MS Word characters counting method.

Whether an AIFM integrates the assessment of non-financial materiality, i.e. potential principal

adverse sustainability impacts into the investment decision processes of AIFMs should be

determined by the AIFM. Therefore, we do not find that such assessment should be a

mandatory requirement.

If the AIF are marketed as a sustainable fund the AIFM should integrate the assessment of

potential principal adverse sustainability impacts.

Question 92. Should the adverse impacts on sustainability factors be

integrated in the quantification of sustainability risks (see the example in the

introduction)?

Fully agree

Somewhat agree

Neutral

Somewhat disagree

Fully disagree

Don’t know / no opinion / not relevant

Question 92.1 If you agree, please explain how and at which level the adverse

impacts on sustainability factors should be integrated in the quantification of

sustainability

risks

(AIFM

financial

product

level

etc.).

Please explain your answer including concrete proposals, if any, and costs,

advantages and disadvantages associated therewith. Please make a

distinction between adverse impacts and principal adverse impacts and

consider those types of adverse impacts for which data and methodologies

are available as well as those where the competence is nascent or evolving

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5000 character(s) maximum

including spaces and line breaks, i.e. stricter than the MS Word characters counting method.

When relevant, adverse impacts on sustainability factors should be integrated in the

quantification of sustainability risks, if such risks are relevant.

However, whether adverse impacts on sustainability factors should

always

be integrated in the

quantification of sustainability risks is not to be determined within the AIFMD but in e.g. the

disclosure regulation 2019/2088.

Question 92.1 Please explain your answer to question 92:

5000 character(s) maximum

including spaces and line breaks, i.e. stricter than the MS Word characters counting method.

Question 93. Should AIFMs, when considering investment decisions, be

required to take account of sustainability-related impacts beyond what is

currently required by the EU law (such as environmental pollution and

degradation, climate change, social impacts, human rights violations)

alongside the interests and preferences of investors?

Yes

No, ESMA’s current competences and powers are sufficient

Don’t know / no

opinion / not relevant

Question 93.1 If so, how should AIFMs be required to take account of the

long-term sustainability and social impacts of their investment decisions?

Please explain.

5000 character(s) maximum

including spaces and line breaks, i.e. stricter than the MS Word characters counting method.

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Question 93.1 Please explain your answer to question 93:

5000 character(s) maximum

including spaces and line breaks, i.e. stricter than the MS Word characters counting method.

Investors should be well informed by ensured transparency through disclosures in relation to

the investment process and policy of the AIFMs.

AIFMs should, when considering investment decisions, be required to take account of

sustainability-related impacts beyond what is currently required by the EU law

the

investment strategy of the AIFM is labeled as sustainable by the AIFM or the AIF is marketed

as such.

Question 94. The

EU Taxonomy Regulation 2020/852

provides a framework

for identifying economic activities that are in fact sustainable in order to

establish a common understanding for market participants and prevent green-

washing. To qualify as sustainable, an activity needs to make a substantial

contribution to one of six environmental objectives, do no significant harm to

any of the other five, and meet certain social minimum standards. In your view,

should the EU Taxonomy play a role when AIFMs are making investment

decisions, in particular regarding sustainability factors?

Yes

Don’t know / no opinion / not relevant

Question 94.1 Please explain your answer to question 94:

5000 character(s) maximum

including spaces and line breaks, i.e. stricter than the MS Word characters counting method.

The EU Taxonomy should play a role when AIFMs are making investment decisions if the

investment strategy of the AIFM is labeled as sustainable by the AIFM or the AIF is marketed

as such.

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Question 95. Should other sustainability-related requirements or international

principles beyond those laid down in Regulation (EU) 2020/852 be considered

by AIFMs when making investment decisions?

Yes

Don’t know /

no opinion / not relevant

Question 95.1 Please explain your answer to question 95, describing

sustainability-related requirements or international principles that you would

propo se

consider .

Please indicate, where possible, costs, advantages and disadvantages

associated therewith:

5000 character(s) maximum

including spaces and line breaks, i.e. stricter than the MS Word characters counting method.

Please see the answer to question 94.

VII. Miscellaneous

This section contains a few questions on the competences and powers of supervisory authorities. It also

opens up the floor for any other comments of the stakeholders on the AIFMD related regulatory issues that

are raised in the preceding sections. Respondents are invited to provide relevant data to support their

remarks/proposals.

Question 96. Should ESMA be granted additional competences and powers

beyond those already granted to them under the AIFMD?

Please select as many answers as you like

entrusting ESMA with authorisation and supervision of all AIFMs

entrusting ESMA with authorisation and supervision of non-EU AIFMs and

AIFs

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enhancing ESMA’s powers in taking action against individual AIMFs and

AIFs where their activities threaten integrity of the EU financial market or

stability the financial system

enhance ESMA’s powers in getting information about national supervisory

practices, including in relation to individual AIMF and AIFs

no, there is no need to change competences and powers of ESMA

other

Please explain why you think ESMA should be entrusted with authorisation

and

supervision

all

AIFMs.

Please present costs, advantages and disadvantages associated with the

chosen option. Concrete examples substantiating your answer are welcome:

5000 character(s) maximum

including spaces and line breaks, i.e. stricter than the MS Word characters counting method.

We believe that there is no need to change the competences and powers ESMA. It is important

that the AIFMD leaves the necessary discretion to Member States.

Please explain why you think ESMA should be entrusted with authorisation

and

supervision

non- EU

AIFMs

and

AIFs.

Please present costs, advantages and disadvantages associated with the

chosen option. Concrete examples substantiating your answer are welcome:

5000 character(s) maximum

including spaces and line breaks, i.e. stricter than the MS Word characters counting method.

Svar:

N/A

Please explain why you think ESMA’s powers should be enhanced in taking

action against individual AIMFs and AIFs where their activities threaten

integrity of the EU financial market or stability the financial

system.

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Please present costs, advantages and disadvantages associated with the

chosen option. Concrete examples substantiating your answer are welcome:

5000 character(s) maximum

including spaces and line breaks, i.e. stricter than the MS Word characters counting method.

Svar:

N/A

Please explain why you think ESMA’s powers should be enhanced in getting

information about national supervisory practices, including in relation to i

ndividual

AIMF

and

A I F s.

Please present costs, advantages and disadvantages associated with the

chosen option. Concrete examples substantiating your answer are welcome:

5000 character(s) maximum

including spaces and line breaks, i.e. stricter than the MS Word characters counting method.

Svar:

N/A

Please explain with what other additional competences and powers ESMA

shou l d

granted .

Please present costs, advantages and disadvantages associated with the

chosen option. Concrete examples substantiating your answer are welcome:

5000 character(s) maximum

including spaces and line breaks, i.e. stricter than the MS Word characters counting method.

Svar:

N/A

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Question 97. Should NCAs be granted additional powers and competences

beyond those already granted to them under the AIFMD?

Yes

Don’t know / no opinion / not relevant

Question 97.1 Please explain your answer to question 97, providing

information, where available, on the costs and benefits, advantages and

disadvantages of implementing your suggestion:

5000 character(s) maximum

including spaces and line breaks, i.e. stricter than the MS Word characters counting method.

We believe that the powers and competences granted by the AIFMD are sufficient.

However, as pointed out in ESMA letter of 18. August 2020 the AIFMD would benefit from

further clarification of the power of Member States to apply additional requirements under their

national law to sub-threshold AIFMs.

Question 98. Are the AIFMD provisions for the supervision of intra-EU cross-

border entities effective?

Fully agree

Somewhat agree

Neutral

Somewhat disagree

Fully disagree

Don’t know / no opinion / not relevant

Question 98.1 Please explain your answer to question 98, providing concrete

examples:

5000 character(s) maximum

including spaces and line breaks, i.e. stricter than the MS Word characters counting method.

Experience shows that there is still a lack of clarity in what the precise responsibilities of home

and host supervisors are in some cross-border marketing, management and delegation cases.

Clarification of the supervisory responsibilities would reduce uncertainty regarding cross-border

activities within the internal market and benefit the internal market.

This is also caused by AIFMs using branches and/or delegating a variety of functions to

multiple third parties across different Member States (and non-EU jurisdictions), which gives

added impetus to ensuring clear supervisory responsibilities and effective exchange of

information among all relevant NCAs.

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Some further legislative clarifications could therefore be provided regarding the supervision of

cross-border activities of AIFs, their managers and delegates.

For example, in the case of AIF suspensions, there are general provisions in the AIFMD in

relation to exchange of information. However, it would be useful to further clarify the

supervisory responsibilities and obligations to share information with other NCAs and ESMA.

There is the need to further clarify the roles and responsibilities of home and host NCAs where

AIFs are managed on a cross-border basis under Article 33 AIFMD.

Lastly, the supervision of branches would also benefit merit in further harmonisation. When an

AIFM establishes a branch in order to offer products in a host jurisdiction, it is not clear what

the roles of that AIFM’s home and host NCAs are in some cases. It is also not clear what the

procedure is for home and host NCAs when an AIFM wants to close a branch, nor is there a

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Question 99. What improvements to intra-EU cross-border supervisory

cooperation

would

you

suggest?

Please provide your answer presenting costs, advantages and disadvantages

associated with the suggestions:

5000 character(s) maximum

including spaces and line breaks, i.e. stricter than the MS Word characters counting method.

Please see the answer to question 98.

Question 100. Should the sanctioning regime under the AIFMD be changed?

Yes

Don’t know / no opinion / not relevant

Question 100.1 Please explain your answer to question 100, substantiating

your answer in terms of costs/benefits/advantages, if possible:

5000 character(s) maximum

including spaces and line breaks, i.e. stricter than the MS Word characters counting method.

Due to the differences between Member States, it is important that the AIFMD leaves discretion

to Member States and respects their differences in structure and tradition.

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Question 101. Should the UCITS and AIFM regulatory frameworks be merged

into a single EU rulebook?

Yes

Don’t know / no opinion / not relevant

Question 101.1 Please explain your answer to question 101, in terms of costs,

benefits and disadvantages:

5000 character(s) maximum

including spaces and line breaks, i.e. stricter than the MS Word characters counting method.

We agree and see merits in further harmonization between the UCITS and AIFM regulatory

frameworks, but we do not agree that the two frameworks should be merged.

While they are both collective investment undertakings, there are substantial differences

between them. Most notable the UCITS directive is directed at both professional and retail

investors, while AIFMD is directed at professional investors and therefore structurally have

different focuses and protection goals.

To that end, UCITS hold a certain

“brand”

particularly based on the differences. Merging

UCITS with AIFs would therefore be not be advisable.

Question 102. Are there other regulatory issues related to the proportionality,

efficiency

and

effectiveness

the

AIFMD

legal

framework?

Please detail your answer, substantiating your answer in terms of costs

/benefits/advantages, where possible:

5000 character(s) maximum

including spaces and line breaks, i.e. stricter than the MS Word characters counting method.

As already mentioned, we don’t see a need to introduce a new investor category in the AIFMD.

Retail investors have already today the opportunity to be classified as a professional investor if

the retail investor meets two of the three criteria in Annex II, part B in MiFID-II. These criteria

better align with a

“semi-professional

investor” thereby merit waiving some of the protections

afforded these investors. If introduction of new categories of investors under the AIFMD is

considered it has to be accompanied by appropriate investor protection rules.

Regarding Sub-thresholds AIFMs we find that the Commission should reconsider such

category in the AIFMD. Today, these AIFMs are not regulated unless Member States have set

out national regulation on sub-threshold AIFMs. This hinders a harmonized approach and a

level playing field and it impair investor protection. To ensure a level playing field and to ensure

investor protection, legislative amendments should ensure that these AIFMs are also regulated

or at least subject to certain provisions of the AIFMD.

Lastly, the AIFMD would benefit from amendments to definitions of an AIF. Notwithstanding

ESMA’s guidelines on key concepts of the AIFMD, some residual uncertainties remain in the

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AIFMD definitions that could be addressed to improve the clarity around the scope of AIFMD. It

is difficult to explain structural and economic differences and to distinguish on a legally sound

basis between vehicles that fall under AIFMD and those that do not. Moreover, making legal

changes in the Level 1 framework confers a benefit for the day to day supervisory practice of

the NCAs as well as an advantage in possible appeal proceedings.

The current definition is too vague and not specific enough and thus need to be specified more

clearly, otherwise different national implementations will continue to lead to uncertainty and

fragmentation across the Single Market. Specifically, we see merit in further defining

‘AIFs’

consistent with the ESMA guidelines on key concepts of the AIFMD which could be done by

implementing a definition of (1) general commercial or industrial purpose in connection with

real estate projects, (2) pooled return in general and (3) investment policy. We also see merit in

specifying the distinction between holdings and private equity funds and clarifying the definition

of a joint venture.

Additional information

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Should you wish to provide additional information (e.g. a position paper, report)

or raise specific points not covered by the questionnaire, you can upload your

additional document(s) here:

The maximum file size is 1 MB.

You can upload several files.

Only files of the type pdf,txt,doc,docx,odt,rtf are allowed