AIFMD - CBI Clarifies Non-Application to Debt-Issuing SPVs
The enactment of EU Directive 2011/61/EU on Alternative Investment Fund Managers (the "AIFMD") gave rise to considerable uncertainty as to whether structured finance vehicles would be considered alternative investment funds ("AIFs") under the AIFMD and therefore would be required by the AIFMD to appoint an authorised alternative investment fund manager ("AIFM") or be authorised themselves as AIFMs.
Due to this uncertainty, the Irish Debt Securities Association (comprising participants in the Irish structured finance market, including Maples and Calder) have been consulting with the Central Bank of Ireland ("CBI") to clarify its position in respect of the scope of application of the AIFMD. As a direct result of these efforts an additional Q&A was included in the fifth edition of the AIFMD Q&A published by the CBI on 8 November 2013 (the text of which is set out in full below).
The current position of the CBI is that (i) entities registered as 'financial vehicle corporations' under Regulation (EC) No. 24/2009 of the European Central Bank and (ii) other special purpose vehicles which do not issue shares or units to investors but rather raise finance through the issue of debt securities, will not be considered to be within the scope of the AIFMD.
Special Purpose Vehicles Q&A
Q. I operate an SPV. As ESMA has not yet issued guidance on how the Article 2(3)(g) exemption applies, what should I do to ensure that I am in compliance with the AIFMD?
As a transitional arrangement, entities which are either:
a) Registered Financial Vehicle Corporations within the meaning of Article 1(2) of the FVC Regulation (Regulation (EC) no 24/2009 of the European Central Bank), or
b) Financial vehicles engaged solely in activities where economic participation is by way of debt or other corresponding instruments which do not provide ownership rights in the financial vehicle as are provided by the sale of units or shares are advised that they do not need to seek authorisation as, or appoint, an AIFM, unless the Central Bank of Ireland issues a Q&A replacing this one advising them to do so. The Central Bank of Ireland does not intend to do that at least for so long as ESMA continues its current work on this matter. If entities which believe they fall under (b) but not (a) wish to write to the Central Bank of Ireland in this regard, they may email AIFMDsecuritisation@centralbank.ie.
We will continue to monitor any further CBI or ESMA announcements in relation to this matter.
For further information please speak with your usual Maples contact.