Transposition ahead: AIFMD II and the road for 2026
Publicado em 11/12/2025
About the authors:
Jacinto Berdaguer is an associate in Addleshaw Goddard’s Madrid funds team. Spanish qualified lawyer, graduated with a double degree in Law and Business Administration from Universidad Autónoma de Madrid, he advises sponsors and institutional investors on the structuring and launch of Spanish private capital vehicles.
Nemesio Fernández is an associate in Addleshaw Goddard’s Madrid funds team. A lawyer qualified in Spain and Luxembourg, he holds a Master’s in International Advocacy and a Master’s in Access to the Legal Profession from ISDE Law & Business School. He advises on the structuring and launch of Spanish private-capital vehicles across private equity, venture capital, and sector funds.
Lidia Silva is an associate in Addleshaw Goddard’s Madrid Madrid funds team focused on investment funds and private capital. She holds a Dual Degree in Spanish and French Law, from Panthéon-Sorbonne University and a Master’s in Access to the Legal Profession from Complutense University of Madrid.
Key points:
Directive (EU) 2024/927 (“AIFMD II”) introduces rules that will impact Spanish fund managers
AIFMD II aims to address supervisory gaps and regulatory inconsistencies in the alternative investment fund sector
AIFMD II establishes a harmonized regulatory regime for loan-originating AIFs
AIFMD II allows the appointment of a depositary established in another member state
AIFMD II introduces stricter rules on liquidity management for open-ended AIFs
Liquidity management becomes a formal obligation for managers, who must put in place robust processes
Following the entry into force of Directive (EU) 2024/927 (“AIFMD II”) on April 15th 2024, member states of the European Economic Area are required to transpose most of its provisions by April 16th 2026. Introduced as an update to the original AIFMD (Directive 2011/61/EU), the reform aims to address supervisory gaps and regulatory inconsistencies in the alternative investment fund sector.
In this context, Spain’s regulatory framework, currently governed by the Law 22/2014, will need to be aligned with the AIFMD II covering, inter alia, new provisions on delegations by the managers and funds’ loan origination. In particular, Spanish alternative investment fund managers (AIFMs – which, under Spanish law, may include both S.G.E.I.C.s and S.G.I.I.C.s) engaged in cross-border activity or managing loan-originating funds may face stricter compliance obligations and reporting duties.
Loan origination
AIFMD II introduces, for the first time, a harmonized regulatory regime for loan-originating alternative investment funds (AIFs),. Importantly, the definition of “loan origination” extends to both direct lending and indirect arrangements involving special-purpose vehicles or third parties, provided the AIFM is involved in structuring or defining the loan’s characteristics.
The framework imposes risk retention requirements (5% of the notional value of each originated and transferred loan), concentration limits (a 20% cap on lending to certain financial counterparties) and restrictions on lending to affiliated entities of the AIFM or its delegates. Moreover, AIFMs are prohibited from pursuing a pure “originate-to-distribute” strategy and must adopt robust credit-risk policies and monitoring procedures. These rules aim to address systemic risk and moral hazard in the private credit market, but also raise operational and compliance challenges for fund managers operating or marketing in Spain or any other EEA jurisdictions.
The directive provides a harmonized set of liquidity management tools that managers may use.
Spain partially anticipated AIFMD II’s regulatory approach to loan origination through Article 4 bis of Law 22/2014, which introduced loan-originating closed-ended collective investment undertakings (entidades de inversión colectiva de tipo cerrado de préstamos). These entities were already subject to credit risk policies and broad diversification obligations. However, AIFMD II goes further by establishing harmonized rules which Spanish AIFMs will now be required to fully adopt, particularly in the context of indirect lending structures.
Depositary arrangements
AIFMD II introduces a significant departure from the original framework by permitting, under specific conditions and subject to member state discretion, the appointment of a depositary established in another member state. This marks a notable shift from the current position, which generally restricts depositaries to the same jurisdiction as the one of establishment of the relevant AIF.
Expanded scope of activities
The evolving regulatory framework enhances the operational flexibility of AIFMs by broadening the scope of ancillary services they may provide. Notably, it introduces two new non-core activities: the administration of benchmarks, and credit servicing activities. These additions open new routes for business diversification and service integration. However, the administration of benchmarks is expressly limited in scope ‒ it may not relate to benchmarks used by the AIFs managed by the relevant AIFM, thereby mitigating potential conflicts of interest.
Delegation and resources
The changes to delegation under AIFMD II are rooted in the European Securities & Markets Authority’s (ESMA) long-standing concerns about excessive reliance on third-country entities, the widespread use of secondment arrangements and white-label providers, and on whether AIFMs have sufficient substance in the EU. While there was some expectation that this could lead to major restrictions, the final text has kept the existing delegation model largely intact. Delegation remains possible and legitimate, but it is now subject to closer scrutiny and a more structured supervisory framework.
The foregoing is translated into new obligations, both at the licensing stage and on an ongoing basis. Authorization applications must now include more detailed disclosures regarding delegation arrangements, and reporting obligations to national competent authorities will expand once the implementing measures are in place. These new reporting requirements are expected to apply from 2027, after a transitional period. They will require disclosure of the identity and regulatory status of the delegates, the proportion of assets managed under delegation, the resources retained within the AIFM to oversee these arrangements and the outcome of periodic due diligence reviews over such delegates. In addition, managers will have to provide full portfolio disclosure, covering all markets, instruments, exposures and assets, as well as the EU jurisdictions in which their funds are marketed.
AIFMD II also resolves a long-standing uncertainty around marketing. Where a distributor acts on behalf of the AIFM, its activities are expressly treated as delegation and therefore fall within the AIFMD regime. By contrast, where distribution is carried out by a distributor acting on its own behalf under MiFID II or through life-insurance based investment products, the delegation rules do not apply, even where contractual arrangements exist between the parties. More broadly, AIFMD II clarifies that any AIFM function or ancillary service when performed by a third party on behalf of the AIFM, fall within the scope of the delegation regime.
AIFMD II reform aims to address supervisory gaps and regulatory inconsistencies in the alternative investment fund sector.
The directive also introduces new substance requirements, stating that at least two natural persons who, on a full-time basis, either are employed by the AIFM or are executive members or members of the management body of the AIFM, and who are domiciled, in the sense of having their habitual residence, in the Union, should be appointed to conduct the business of the AIFM. The Commission has stressed that this should be seen as a minimum, with larger or more complex managers expected to maintain additional resources.
Finally, AIFMD II reinforces a principle that has always underpinned the regime, namely that responsibility for delegated functions cannot be outsourced. The AIFM remains fully accountable for compliance, irrespective of the location or regulatory status of its delegates and must ensure that contractual arrangements effectively transfer the relevant obligations.
Liquidity management tools
AIFMD II introduces stricter rules on liquidity management for open-ended AIFs, requiring managers to include at least one pre-approved liquidity management tool (LMT) in their fund documentation. This measure ensures that every AIF will have a mechanism to deal with periods of market stress and investor outflows, reducing the risk of disorderly asset sales and safeguarding the interests of remaining investors.
The directive provides a harmonized set of LMTs that managers may use, including redemption gates, swing pricing, redemption fees, side pockets and, in extreme cases, suspension of redemptions. Regulators are also empowered to require the activation or deactivation of such tools when necessary. Under AIFMD II, liquidity management becomes a formal obligation for managers, who must put in place robust processes.
ESMA has issued regulatory technical standards (RTS) and guidelines on LMTs, setting out how these tools should be selected and applied consistently by AIFMs. The RTS define their operational features and the guidelines clarify when managers should activate them, taking into account fund strategy.
What’s next?
AIFMD II introduces tougher and clearer rules that will impact Spanish fund managers, particularly regarding loan origination, delegation and reporting. While this entails increased upfront effort, it also paves the way for greater transparency and stronger positioning across Europe. Although Spain has yet to begin implementing AIFMD II, with the 2026 transposition deadline approaching, Spanish AIFMs should prioritize reviewing and updating internal policies, risk management frameworks and reporting systems. Close attention to ESMA’s upcoming Level 2 and Level 3 measures will be essential to maintain compliance and seize strategic opportunities in cross-border fund management.