Application of DORA Regulation to sub-threshold AIFMs which have chosen to opt-in to the application of the AIFMD (Art. 3(4)), if the thresholds regarding AuM referred to under Article 3(2) of AIFMD are not exceeded

Are sub-threshold alternative investment fund managers (AIFMs) as referred to in Article 3(2) of Directive 2011/61/EU (“ AIFMD ”), which have chosen to opt-in to the application of the AIFMD according to Article 3(4) of that Directive, captured within the scope of application of Regulation (EU) 2022/2554 (“ DORA ”) under Articles 2(1)(k) and 2(3)(a) of DORA, if the thresholds regarding assets under management (“ AuM ”) referred to under Article 3(2) of AIFMD are not exceeded by such AIFM?

Sub-threshold AIFMs are excluded from the scope of the application of DORA (see Article 2(3)(a) of DORA). This was confirmed also by Question ID: 2734 - DORA003 submitted to the EIOPA and answered by the European Commission. Article 2(3)(a) of DORA refers to managers of alternative investment funds as referred to in Article 3(2) of AIFMD. Such article makes reference to the thresholds concerning AuM which thus are the only criteria to be taken into account for delimiting the scope of application of DORA to AIFMs. In light of the above, it can be inferred that DORA applies only to AIFMS which have exceeded those thresholds of AuM, regardless of whether a sub-thresold AIFM has opted in as a full-scope AIFMD manager. Should a sub-threshold AIFM which has opted in to AIFMD exceed the thresholds under Article 3(2) of AIFMD at any point in time, then such AIFM would start to be subject to DORA.   To further strengthen the interpretation above, it is worth mentioning that sub-thresholds AIFMs managing EuVECA/EuSEF have the marketing pass-porting right for such funds’ units like sub-thresholds AIFM which have opted in to AIFMD. Such EuVECA/EuSEF AIFMs are not subject to DORA. So it would be disproportionate to argue that sub-threshold AIFMs which have opted in to the application of the AIFMD should be subject to DORA as they are essentially in a similar situation – most notably in respect of the EU marketing passport – to EuVECA/EuSEF managers.  Finally, arguing that sub-thresholds AIFM should be subject to DORA only because they decided to opt-in to AIFMD could discourage sub-thresholds AIFM to opt-in under AIFMD and this to the detriment of the European market and the implementation of a harmonised legislation on AIFMs.