ESMA Guidance On Performance Fees: Are You Prepared?

Earlier this year, the European Securities and Markets Authority (ESMA) published its guidelines on performance fees for UCITS and retail AIFs, further details can be found here.

The ESMA guidelines apply to fund managers of UCITS and open-ended AIFs marketed to retail investors (except for EuVECAs, venture capital AIFs, EuSEFs, private equity AIFs or real estate AIFs) using a performance fee.

The ESMA guidelines:

• define the specific requirements relating to the performance fee calculation method used by funds in scope;
• require consistency between the performance fee model and the fund’s investment objectives, strategy and policy;
• set limits on the frequency for the crystallisation of the performance fee and provide guidance for negative performance (loss) recovery; and
• describe the disclosure requirements in the offering documents and the regulatory reports of the Funds.

ESMA guidelines should be applied two months from the date of publication, in all EU official languages, on ESMA’s website and we note that as of 5 November, 2020 the guidelines will be fully translated and published, meaning that:

• any new fund launched after 5 January, 2021, that includes a performance fee, or any existing fund that introduces a performance fee for the first time after that date, should comply with the guidelines immediately; and
• any existing fund must apply the guidelines by the beginning of their financial year following six months from 5 January, 2021.

You can consult the ESMA website here for more detail.

If you would like to discuss this topic in more detail or if you have any further questions, please do not hesitate to contact your usual DMS representative or contact us below. Our team of EU fund professionals are here to help you comply with the steps required to ensure that your funds will comply with the ESMA guidelines.