On March 26, Directive (EU) 2024/927 of the European Parliament and of the Council dated March 13, 2024
(“AIFMD2”) was published in the Official Journal of the European Union. AIFMD2 amends Directives 2011/61/EU and 2009/65/EC in several aspects, including loan origination by alternative investment funds. The intervention is
particularly relevant because it aims to provide a common legal framework applicable to all alternative funds that do “loan origination” as well as a definition of the activity of “loan origination” when carried out by authorized asset managers.
AIFMD2 is the result of a process that started with the opinion published by the European Securities and
Market Authority (“ESMA”) on April 11, 2016(1) and the observation of the fragmentation of national regulations of member states (“ESMA Opinion”).
The ESMA Opinion briefly refers to various ways in which investment funds can lend: “loan origination”, “loan participation” and “loan restructuring” focusing, however, only on the first one (2). Specifically, “loan origination” is identified by ESMA with the scenario where an investment fund originates credit (i.e., it disburses it directly), acting as the sole lender or as one of the main lenders.
The purpose of this Alert is to briefly outline the main changes brought by AIFMD2 in this area, highlighting some aspects on which clarity will need to be provided at the EU level or through the implementation of the rules at domestic level.
