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These non-EU AIFMs will be subject to the full set of remuneration provisions in these guidelines as from the date when the national regimes referred to in Article 42 of the AIFMD will be terminated and the passport regime provided for in Articles 37 to 41 of the AIFMD will become the sole and mandatory regime applicable in all Member States, as determined by the Commission’s delegated act referred to in Article 68(6) of the AIFMD.
In accordance with Article 5 of the AIFMD, for the purposes of these guidelines, the AIFMs to which the remuneration principles apply shall be either an external manager or, where the legal form of the AIF permits internal management and where the AIF’s governing body chooses not to appoint an external AIFM, the AIF itself. AIFs which are not internally managed and have appointed an external AIFM are not subject to the remuneration principles established in the AIFMD as well as these guidelines. However, the remuneration principles set out in the Recommendation are relevant to those AIFs, as well as the AIFMs which can benefit from the exclusions and exemptions foreseen in Articles 2 or 3 of the AIFMD, to the extent that they fall within the definition of ‘financial undertaking’ provided in paragraph 2.1 of the Recommendation. Annex I of these guidelines provides for a correlation table highlighting those principles of the Recommendation which are reflected in the AIFMD.
On 8 July 2013, ESMA received a letter from the European Commission (EC) in response to its draft regulatory technical standards in its Final report - Draft Regulatory Technical Standards on types of AIFMs (ESMA/2013/413) submitted to the EC on 2 April 2013 for endorsement. According to Article 10(1) sixth sub-paragraph of Regulation (EU) No 1095/2010, ESMA has six weeks starting from 8 July to respond to the EC’s letter.