First steps towards implementation of the AIFMD in Poland
A few months after the deadline for implementing directive 2011/61/EU of the European Parliament and of the Council of 8 June 2011 on Alternative Investment Fund Managers (the AIFM Directive), the Ministry of Finance proposed a draft of assumptions for a new law which aims to transpose the AIFM Directive's provisions into the Polish legal system.
According to the proposed draft, the following entities will be treated as managers of alternative investment funds:
- Polish management companies (TFI) managing: (i) closed-ended funds (FIZ) and (ii) specialised open-ended funds (SFIO) as defined in the Act on Investment Funds dated 27 May 2004; and
- Polish joint-stock companies, limited liability companies and other legal persons (eg a European company, cooperative society or European cooperative society) as well as general partners (which are legal persons) in limited joint-stock and limited partnerships which raise capital from a number of investors, with a view to investing it in accordance with a defined investment policy for the benefit of those investors.
These entities will be required to hold a permit issued by the Polish Financial Supervision Authority (the PFSA) or be registered in the register of managers of alternative investment funds (AIFs) depending on the value of assets under the management (although TFIs will always be required to hold a permit to manage FIZ or SFIO). As to the managers of AIFs, the new law will set out the rules for:
(a) outsourcing their activities;
(b) capital requirements;
(c) informational obligations;
(d) introducing into trading participation rights in AIFs;
(e) establishing branches and conducting activity in other EU member states.
Although only the assumptions have been published thus far, the new law appears to increase significantly the burden on managers of AIFs which have been outside the scope of the Act on Investment Funds dated 27 May 2004 (ie managers other than TFIs). On the other hand, the law will implement into Polish law the "single passport" system for managers of AIFs, which will enable them to act in different EU member states on the basis of a single authorisation.
The Law is expected to enter into force in the second half of 2014. According to the statement issued by the PFSA, until the AIFM Directive is implemented, its provisions will not apply to Polish entities, except for Article 32.1 of the Directive regarding the conditions for marketing AIFs from other EU countries in Poland.