EUROPEAN UNION: Several EU Member States Issue Complaint Relating to Draft AIFMD

Tuesday February 26 2013

On 26 February 2013, Finland, Denmark, Czech Republic, Latvia, Sweden, Ireland, Netherlands, United Kingdom, Germany, Austria, Luxembourg and Portugal issued a statement to the Council of the European Union, concerning the manner in which the post-Lisbon process of producing delegated acts is being conducted. The statement addressed a number of issues:

Firstly, the Commission`s draft Delegated Act for the AIFMD Regulation departs from ESMA`s advice in a number of areas, without explanation. ESMA advice is compiled through a transparent and thorough consultation process, and provides expert understanding from Europe`s supervisory authorities.

Secondly, while the countries recognise the Commission is not obliged to follow ESMA advice, the credibility of the process of producing delegated acts must be ensured. One avenue forward would be to openly consult the Member States. The Member States in question therefore urge the Commission to adopt a more open and consultative approach in future, when drawing up delegated acts.

Thirdly, the draft Delegated Act for the AIFMD Regulation is extremely large and has an extensive effect on the transposition of the Level 1 Directive. The scope of national discretion is widely limited. However, the only possibility for the Member States to give comments to the draft Delegated Act for was in end-March – mid-April last year. Taking into account the amount of detail already in Level 1 Directive, this large opaque piece of the AIFMD regulatory package sets enormous challenge to the hearings of stakeholders and the national parliamentary process.

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