Request for a preliminary ruling from the Cour de cassation (France) lodged on 21 March 2023 – HJ, IK, LM v Twenty First Capital S.A.S.

(Case C-174/23, Twenty First Capital)

Language of the case: French

Referring court

Cour de cassation

Parties to the main proceedings

Applicants: HJ, IK, LM

Defendant: Twenty First Capital S.A.S.

Questions referred

1.    a)    Are Articles 13 and 61(1) of Directive No 2011/61/EU of the European Parliament and of the Council of 8 June 2011 on Alternative Investment Fund Managers and amending Directives 2003/41/EC and 2009/65/EC and Regulations (EC) No 1060/2009 and (EU) 1095/2010 ¹ to be interpreted as meaning that managers performing activities under the Directive before 22 July 2013 are required to comply with the obligations relating to remuneration policies and practices:

i)    at the expiry of the period for transposition of that directive,

ii)    at the date of entry into force of the provisions transposing the Directive into national law,

iii)    from the expiry of the period of one year, expiring on 21 July 2014, referred to in Article 61(1); or

iv)    from the time of obtaining authorisation as manager under the Directive?

b)    Does the answer to this question depend on whether the remuneration paid by the alternative investment fund manager to an employee or a director was agreed before or after:

i)    the expiry of the period for transposition of that directive;

ii)    the date of entry into force of the provisions transposing the Directive into national law;

iii)    the expiry on 21 July 2014 of the period laid down in Article 61(1) of the Directive;

iv)    the date on which the alternative investment fund manager obtained its authorisation?

2.    If it follows from the answer to Question (1) that, following the transposition of the Directive into national law, an alternative investment fund manager is, for a certain period of time, only obliged to make its best efforts to comply with the national legislation resulting from this Directive, does it fulfil that obligation if, during that period, it hires an employee or appoints a director on terms of remuneration which do not comply with the requirements of the national provision transposing Article 13 of the Directive?

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¹ OJ 2011 L 174, p. 1.