*This is an article from Zeidler Group's International site. Zeidler Group US does not offer legal advice.
The European Long-Term Investment Fund (“ELTIF”) has been around since 2015 and was created to provide investors with an opportunity to invest in long-term projects that support economic growth and job creation. However, despite its potential benefits, the uptake of ELTIF has been slow due to several regulatory and operational challenges.
On 20 March 2023, the European Long-Term Investment Funds Regulation (EU) 2023/606 (“ELTIF 2.0”), amending Regulation (EU) 2015/760 (the “ELTIF Regulation”), was published in the Official Journal of the European Union. ELTIF 2.0 aims to be a new and improved version of this fund type that aims to address these issues and unlock the full potential of long-term investments.
ELTIF 2.0 was entered into force on April 9th, 2023, and the amendments to the ELTIF Regulation will apply from January 10th, 2024.
ELTIF 2.0 addresses several supply and demand constraints and clarifies the scope of eligible assets and investments, portfolio composition and diversification requirements, cash borrowing and lending conditions and other fund rules, including sustainability considerations. The changes create improvements aimed at increasing investor protection and facilitating the creation of a more diversified and transparent market. The main aim of ELTIF 2.0 is to increase participation by retail investors, for example through private equity, which is traditionally the sphere of wealthy investors and institutions.
The ELTIF Regulation was first introduced in April 2015. The focus of the ELTIF Regulation was to facilitate to raise European long-term investments for certain types of assets together with the framework of a passporting regime, similar to the AIFMD and UCITS passporting regime.
ELTIFs invest on a long-term basis in infrastructure projects, real estate and SMEs, among others. The aim of the ELTIF Regulation was to support the development of ELTIFs as an alternative long-term investment vehicle for institutional and retail investors and to encourage long-term investments towards European long-term investments in the EU’s ‘real economy’.1. Despite the aims to promote European long-term investments, since the introduction of the ELTIF Regulation in 2015, only a relatively small number of ELTIFs have been authorised.2 The aggregate size of net assets of those funds was estimated at only approximately EUR 2.4 billion in 2021 compared to the total net assets of European investment funds (UCITS and AIFs) of EUR 19.6 trillion.3
1. Increased Investor Protection
In order to enhance the level of trust especially for retail investors, ELTIF 2.0 places a greater emphasis on investor protection by introducing more stringent due diligence requirements and a requirement for greater transparency in the investment process. This will help reducing the risk of investors being exposed to unsuitable or fraudulent investments.
2. Simplification of the Suitability Test
To simplify the administration for ELTIF managers, the ELTIF specific suitability test requirement was deleted. It is now required to carry out an assessment of suitability and provide potential retail investors with such in accordance with Article 25(2) and (6) of Directive 2014/65/EU (“MiFID II”).
3. Ease of Requirements for Marketing to Retail Investors
ELTIF 2.0 introduces a harmonised distribution regime for retail investors by way of removing the EUR 10,000 initial minimum investment requirement and the 10 % limit on aggregate investment cap on financial instrument portfolios not exceeding EUR 500,000 for retail investors.
In addition, the requirement of the local facilities was removed alongside other complementary amendments.4 This complements the efficient and effective use of the passport for the retail-distribution passport.
4. Encouraging Long-term Investments
ELTIF 2.0 aims to encourage long-term investments by increasing the maximum investment period from ten to fifteen years. This will provide more time for investments to mature and generate returns, thereby making the ELTIF more attractive to institutional and retail investors.
5. ELTIF Manager Authorisation
ELTIF 2.0 does no longer require that the ELTIF Manager to have an additional ELTIF management authorisation. ELTIF 2.0 amends Article 5 of the ELTIF Regulation to provide that only the ELTIF itself is subject to regulatory authorisation.
6. Enhanced Market Liquidity and Redemption Rights
ELTIF 2.0 aims to increase the liquidity of the long-term investment market by allowing ELTIF managers to invest in listed securities and facilitating the trading of ELTIF units on the secondary market. This will make it easier for investors to buy and sell their units and increase the attractiveness of the ELTIF as an investment vehicle.
While the ELTIF remains a closed-ended product by nature, ELTIF 2.0 introduces redemption rights during the lifetime of the fund under certain specific circumstances, including where appropriate redemption policies and liquidity management tools are compatible with the relevant ELTIF’s long-term investment strategy.5
7. Amendments to Eligible Assets and Portfolio Diversification
ELTIF 2.0 allows for a broader range of assets to be included in the ELTIF portfolio, including renewable energy, infrastructure, and real estate. It also removes the minimum threshold for individual value of real estate assets. This will provide investors with a wider range of investment opportunities, thereby increasing the diversification of the market.
The amended thresholds in portfolio composition and diversification include the reduction of the diversification requirements by way of lowering the minimum investment in eligible investment assets from 70% to 55%.
ELTIF 2.0 permits fund of fund strategies and removes the 20% investment limit. It also expands the scope of eligible collective investment undertakings to include ELTIFs, EuVECAs and EuSEFs and UCITS and EU AIFs managed by EU AIFMs (with setting a concentration of limits of no more than 30% of the units or shares of a single ELTIF, EuVECA, EuSEF, UCITS or EU AIF) as eligible investments.
The investment rules are further amended with regard to master-feeder ELTIFs structures by permitting that one ELTIF may invests at least 85% of its assets into another ELTIF.
ELTIF 2.0 distinguishes between ELTIFs marketing to professional investors and ELTIFs marketing to retail investors. It is noteworthy that ELTIFs marketing solely to professional investors will be able to take advantage of the revised leverage limit, increased from 30% to 100% of such ELTIF’s net asset value.
In addition, ELTIF 2.0 increases borrowing limits (exceeding short-term borrowing) from 30% to 50% of the net asset value of the ELTIF, when marketing to retail investors, and 100% of the net asset value of the ELTIF, if marketing only to professional investors.
Impact for existing ELTIFs
Existing ELTIFs or those established between 9 April 2023 and 10 January 2024 can choose to opt-in to ELTIF 2.0, subject to notification of the competent authority of the ELTIF, such as the CSSF in Luxembourg or the CBI in Ireland. This creates an opportunity for structures that do not yet exist or are not yet authorized as ELTIFs prior to 10 January 2024 to take advantage of the ELTIF 2.0 regime from their establishment/authorization date, subject to the non-objection of the relevant regulatory authority.
ELTIFs authorized under the original regulation before 10 January 2024 are deemed to comply with ELTIF 2.0 until 11 January 2029. After this date, they will need to comply with ELTIF 2.0. However, if such ELTIFs do not raise additional capital on or after 10 January 2024, they will be deemed to comply with ELTIF 2.0 even after 11 January 2029.
ELTIF 2.0 represents a significant step forward in the development of a robust and efficient long-term investment market in the European Union. By introducing greater investor protection, a more diversified investment market, enhanced market liquidity, and longer investment periods, ELTIF 2.0 aims to unlock the potential of long-term investments and support economic growth. Investors and fund managers should note these developments and consider the opportunities presented by the new ELTIF framework.