Under AIFMD II, Article 20(6a) introduces an explicit carve-out from the delegation regime for the marketing function in Annex I, point 2(b), when marketing is carried out by distributors regulated under MiFID II or the Insurance Distribution Directive (IDD) and acting on their own behalf.
As Zeidler Group recently delved into, the effect is that qualifying marketing activity is not treated as a delegation under Article 20 as a matter of law, regardless of whether a distribution agreement exists, or what form it takes.
That certainty is welcome, but Zeidler Group stresses it also sharpens scrutiny on what actually happens in distribution arrangements.
For many AIFMs, Zeidler Group suggests the right response is not necessarily a wholesale shift in distribution strategy, but a careful, substance-based review to confirm whether an arrangement is confined to marketing within Article 20(6a), or whether it includes additional tasks that remain within the AIFMD delegation regime.
Zeidler Group notes the context for this change is the long-running uncertainty around whether third-party marketing could be viewed as “delegation”, particularly in cases where an AIFM exerted significant influence over how a fund was marketed.
AIFMD II tackles this directly by introducing a carve-out for distribution performed by independent, regulated distributors, effectively drawing a clearer line between independent intermediation and outsourcing that embeds marketing into the AIFM’s own operational framework.
The rule itself is straightforward: marketing of an AIF performed by one or more distributors acting on their own behalf, and regulated under MiFID II or the IDD, is not considered delegation under AIFMD II, irrespective of any distribution agreement.
Zeidler Group highlights what AIFMD II does not do: it does not prohibit third-party distributors, remove or amend MiFID II product governance obligations, prevent AIFMs from defining a proposed target market, require “platform-only” models, or automatically invalidate existing distribution agreements.
Instead, as Zeidler Group points out, the central question becomes independence versus control, with Recital 10 reinforcing that the decisive issue is not whether an agreement exists, but how much control the AIFM exercises over the marketing activity.
Independence is more likely to be preserved where the distributor acts in its own name and on its own behalf, decides how, when, and to whom the AIF is marketed, performs suitability or appropriateness under its own regulatory obligations, and can choose not to distribute (or to de-prioritise) the fund.
Conversely, Zeidler Group warns independence becomes harder to maintain where the AIFM effectively appoints a distributor to oversee the entire distribution function (not just sales), imposes tightly defined marketing strategies that limit discretion, requires approval of marketing materials beyond legal accuracy checks, or controls client targeting and sales execution.
From a practical standpoint, Zeidler Group recommends AIFMs now undertake a considered assessment focused on substantive characteristics. Where changes are needed, Zeidler Group suggests these will often be incremental—tightening documentation so it accurately reflects the regulatory character of the relationship—while retaining a clear rationale for why each model is classified inside or outside the delegation framework under Article 20(6a).
In conclusion, Zeidler Group frames AIFMD II’s message as clear but demanding: independent distribution is not delegation, yet distribution agreements that rely on tight AIFM control over marketing execution may no longer sit comfortably within the new framework, meaning the real question is whether arrangements stay within independent marketing on the distributor’s own behalf, or drift into AIFM operational responsibilities that remain subject to delegation rules.
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