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EFAMA would like to raise ESMA’s attention on the articulation of the guidelines and other pieces of EU legislation. EFAMA believes that the application in other contexts of any definition set out in the guidelines should be subject to an impact assessment. As for now, EFAMA believes that these definitions should be relevant in the context of the AIFMD only.
Some EFAMA Members voiced concerns regarding the discretion left to the competent authorities and market participants to consider that an entity is an AIF even in the absence of all or any of the characteristics. They feared that the discretion could lead to an inconsistent application of the concepts in the definition of AIF across the EU and would therefore contradict the official aim of ESMA to achieve a harmonised regime.
Some EFAMA Members consider it appropriate to add a reference to the national legislation while others see no specific necessity to do so given that range of eligible assets and restrictions on asset allocation stipulated by national law are reflected in the individual fund rules or instruments of incorporation. This being said, such an additional reference brings no detriment and therefore EFAMA does not object to including it in the final guidelines.