Practical reading of the AMF Sanctions Committee’s case law on the qualification of “Other AIF”

Introduction

In April 2026, the AMF once again had occasion to rule on the marketing of an “Other AIF” and on the criteria for reclassifying an investment vehicle as an “Other AIF”, continuing a now well-established body of case law dating back to 2019. In this instance, it sanctioned a financial investment adviser (CIF) for having recommended and advised its clients to invest in securities subsequently reclassified as AIF units, even though those units were not authorised for marketing in France.

Over the course of its decisions, the Sanctions Committee has refined an analytical framework based on functional criteria (capital raising, a defined investment policy, the absence of decision-making power on the part of investors), establishing a firmly substance-based approach centred on the economic reality of the transactions.

Recent decisions confirm this trend: the reclassification of club deals, its extension to vehicles that have issued bonds, and a tightening of compliance and traceability requirements.

⬘ In what circumstances does a vehicle tip over into AIF status despite its legal wrapper?

⬗ What operational lessons can be drawn for portfolio management companies (SGPs) and CIFs?

⬙ How can structuring arrangements be secured in this context?

In practice, the distinction between a simple club deal and an alternative investment fund (AIF) is far from straightforward. Yet its legal consequences differ radically: on one side, a flexible and largely unregulated structure; on the other, a demanding framework requiring authorisation, a depositary, and compliance with the AIFM Directive (2011/61/EU) where the structure includes retail investors or where the total value of its portfolio assets reaches the thresholds set by Article R.532-12-1 of the French Monetary and Financial Code (CMF)[1].

The AMF’s Sanctions Committee has progressively clarified and tightened its approach since 2019. Decisions SAN-2019-14, SAN-2020-13, SAN-2021-02, SAN-2021-08, SAN-2022-05, followed by SAN-2025-08 (the Eternam decision) and SAN-2026-03 (the Kerdiz decision), now form a coherent body of case law enabling the reclassification criteria and applicable sanctions to be identified with precision.

I. The legal framework: definition and criteria

A. The statutory definition

Article L. 214-24, I of the CMF, transposing the AIFM Directive (2011/61/EU), defines collective investment undertakings (OPCs) as vehicles that raise capital from investors with a view to investing it in accordance with a defined investment policy, for the benefit of those investors. The qualification of “Other AIF” (or AIF by object) rests on functional and economic criteria, independent of the legal form adopted. AMF Position No. 2013-16 (incorporating ESMA guidelines 2013/611) sets out these criteria in detail.

B. The four cumulative criteria

1. An OPC with no commercial or industrial purpose

The vehicle does not carry on any commercial or industrial activity of its own. It manages assets on a collective investment basis with a view to generating a collective return for its investors.

Illustrations:

• SAN-2025-08: real estate management without operating activity.
• SAN-2026-03: bond issuance with no activity of its own on the part of the issuer.

2. Raising of capital from investors

Funds are collected and invested collectively, irrespective of the number of investors or their professional status.

Illustrations:

• SAN-2025-08: 14 and 7 investors were held sufficient.
• SAN-2020-13: qualification upheld for a limited number of subscribers.

3. A defined investment policy

A strategy is determined in advance (articles of association, shareholder agreements, marketing materials), specifying the target assets, sector, timeframe and return. This investment policy must be known to and approved by investors prior to their subscription in the vehicle. The AMF takes a very broad view of the criteria for establishing that an investment policy exists.

Illustrations:

• SAN-2025-08: marketing materials held sufficient.
• SAN-2025-08: strategy formalised in the constitutive documents.

4. Absence of discretionary power on the part of investors

Investors, as a collective body, are not consulted on the vehicle’s day-to-day decisions. This is a doctrinal criterion derived from AMF Position No. 2013-16.

Illustrations:

• SAN-2026-03: sole shareholder as decision-maker.

SAN-2025-08: standard shareholder rights and exit rights held insufficient to exclude the qualification.

II. Development of the case law: from 2019 to 2026

A. The founding decisions (2019–2022): CIFs in the spotlight

Case law on AIF qualification and its consequences for distributors was initially built up around financial investment advisers (CIFs).

SAN-2019-14 (28 October 2019): the duty of prior verification

The Committee imposed a financial penalty on a CIF that had marketed in France a Luxembourg investment fund presented as an “Other AIF” (which was not authorised for marketing), in an amount of close to €8 million placed with its clients. The decision establishes a clear principle: ignorance of a product’s regulatory status is no excuse. The breach is aggravated where marketing continues after an AMF notice has expressly confirmed the absence of authorisation.

SAN-2020-13 (18 December 2020): legal qualification as a mandatory exercise

This is the first decision in which the Committee undertakes a full legal qualification exercise in respect of a product as an AIF. Between 2016 and 2017, a CIF had arranged subscriptions to products that the Committee reclassified as AIF units, applying the ESMA guidelines as incorporated into AMF Position No. 2013-16. It reiterates that AIF qualification attaches to the economic reality of the product rather than its contractual wrapper.

SAN-2021-08 and SAN-2022-05: an escalation of sanctions

Decision SAN-2021-08 (30 April 2021) sanctioned another CIF for the unauthorised marketing of a German “Other AIF”, a decision upheld by the Conseil d’État in March 2023. Decision SAN-2022-05 (26 April 2022) marked a notable hardening: the director of the CIF concerned was banned from practice for five years, signalling an escalation in the regulator’s disciplinary response.

B. The landmark decisions (2025–2026): SGPs and the reclassification of club deals

SAN-2025-08 (Eternam): the first reclassification of a club deal

An authorised SGP had structured two real estate club deals, named “Aigle Noir” and “Mercure Tours”, set up as simplified joint-stock companies (SAS) with 14 and 7 investors respectively. The Committee reclassified these vehicles as “Other AIFs”, applying the three cumulative criteria: absence of commercial purpose, pooled capital raising, and a formalised investment policy. It added that investors, as a group, held no discretionary power over day-to-day decisions.

Although authorised, the SGP had neither applied the “Other AIF” regime nor appointed a depositary, in breach of Articles L. 214-24, III and L. 533-22-2-1 of the CMF. A financial penalty of €400,000 was imposed. The decision shows that even an authorised operator can fail to meet its obligations if its internal procedures are not adapted to each type of vehicle managed.

The Eternam decision provides decisive clarification on the notion of a defined investment policy: this may result not only from the articles of association or shareholder agreements, but also from marketing materials, provided these specify the type of assets, sector, geographic area, timeframe and return objectives.

On the absence of discretionary power, the Committee clarifies that merely holding standard shareholder rights or exit rights is not sufficient to exclude OPC qualification where management remains centralised. It also marks a notable methodological shift: compliance is no longer measured by the existence of formal procedures, but by their demonstrable and documented effectiveness.

SAN-2026-03 (Kerdiz): extension to bonds and to CIFs

The Kerdiz decision extends reclassification to an instrument that appeared, on its face, conventional: bonds issued by companies within the Multitalent group. The issuing entities were in reality special-purpose vehicles set up to carry out one or two bond issuances with a view to financing future real estate acquisitions. Bondholders held no voting rights, all decisions being entrusted to a sole shareholder. AIF qualification was therefore warranted.

The decision is of particular interest in that it sanctions a CIF. It yields two lessons: first, the CIF should have satisfied itself as to the existence of an authorised SGP and a depositary before any marketing took place (since the securities were subscribed by non-professional investors); second, a prospectus is not sufficient — the Prospectus and AIFM regimes are cumulative, and prior AMF authorisation (Article 421-13 of the AMF General Regulation) is required to market an AIF to non-professional investors in France.

III. Putting the case law into perspective

A. A consistent guiding principle: the primacy of substance

The central lesson common to all of these decisions is the primacy of economic reality over legal form. Whether the vehicle is presented as a club deal, a bond issuance or a special-purpose structure, the Committee systematically examines whether the cumulative criteria for AIF status are met. This approach is consistent with the spirit of the AIFM Directive, which is specifically aimed at preventing regulatory circumvention through legal wrapping.

B. Towards regulatory alignment of “Other AIFs”

These recent decisions form part of a broader regulatory trend. The 2024 Annual Report of the AMF-ACPR Joint Unit envisages aligning the regime applicable to “Other AIFs” offered as unit-linked vehicles within life insurance contracts with that applicable to AIFs by nature (FCPRs and others): AMF authorisation, currently not required for such vehicles when distributed through this channel, could become mandatory. The window of tolerance for flexible investment structures is narrowing.

IV. Practical takeaways

For portfolio management companies:

1. Systematically analyse the qualification of any new vehicle against the four cumulative criteria.
2. Formally document, in writing, the conclusion reached and the legal reasoning underpinning it.
3. Where AIF qualification applies: appoint an SGP and a depositary if retail investors are involved or if assets under management exceed €500 million (€100 million where leverage is used), and comply with the AIFM programme of activity.
4. Document and test the effectiveness of controls over delegates and valuation procedures.
5. Update the conflicts-of-interest mapping.

For financial investment advisers:

1. Never presume a product’s compliance: systematically verify its qualification (AIF or otherwise).
2. Where the product is an AIF: satisfy yourself as to the existence of an authorised SGP and a depositary (if the vehicle targets retail investors or raises more than €500 million, or €100 million where leverage is used).
3. Verify the AMF marketing authorisation (Article 421-13 of the AMF General Regulation) for non-professional investors.
4. Verify the regulatory status of each counterparty before any transaction.

Conclusion

The decisions handed down by the AMF’s Sanctions Committee since 2019 form a coherent and steadily developing body of case law. They make it possible to draw the boundary, with precision, between unregulated management and third-party asset management subject to the AIFM framework.

The Committee’s position is clear: form does not protect, substance binds. Where a vehicle organises a capital raising in accordance with a defined investment policy, without investors holding decision-making power over day-to-day operations, AIF qualification applies, together with all of the obligations that flow from it.

For practitioners, caution is warranted: any structuring of a collective investment vehicle must be subject to a rigorous, documented and periodically reviewed qualification analysis. Internal procedures are only as good as their actual, traceable implementation. In a regulatory environment that continues to tighten, anticipation is now the best protection.

[1] Namely €100 million where leverage is used, or €500 million absent leverage and with a lock-up of investors for at least 5 years.