Friday August 2 2013

News Source: Fund Regulation

Focus: AIFMD

Type: General

Country: European Union




The European Securities and Markets Authority (ESMA) has today published its Opinion on practical arrangements for the late transposition of AIFMD. In the Opinion the Authority has identified problems that can arise through late transposition of the Directive such as the following:

  • An AIFM in a Member State where the Directive has been transposed may not be able to manage an EU AIF established in another Member State that has not transposed the Directive.
  • AIFMs and competent authorities in Member States that have transposed the Directive may have difficulties notifying the marketing of EU AIFs (including AIFs established in a Member States other than the home Member State of the AIFM) to relevant competent authorities if the host Member State has not transposed the Directive.
  • Member States have an obligation to reconcile their legal order with the objectives of a directive at the end of the transposition period. The CJEU has held that Member States are liable to pay damages where loss is sustained by reason of failure to transpose a directive in whole or in part.

ESMA has also arrived at the conclusion that if the Directive has been transposed in the home Member State of the AIFM, the competent authority of the host Member State of the AIFM (Article 32) or home Member State of the AIFM (Article 31) may not refuse a valid notification under the Directive on the ground that the Directive has not yet been transposed in the host Member State. This applies irrespective of whether the marketing is done using the freedom to provide services or by means of a branch.

ESMA is of the opinion that AIFMs established in a MS that has transposed the Directive should be able to manage an EU AIF via the management passport, both using the freedom to provide services or by means of a branch, in a MS where the Directive has not been transposed. Any local restrictions on AIFMs that are not in accordance with the AIFMD will need to be disapplied.

Please click on the above link for more details.