Dealing with late transposition of AIFMD: ESMA opinion
8 August 2013
In August 2013, the European Securities and Markets Authority (ESMA) issued its Opinion on practical arrangements for the late transposition of the AIFMD (the Alternative Investment Fund Managers Directive).
According to ESMA’s opinion, competent authorities of host Member States which have not yet transposed the AIFM Directive cannot refuse valid notifications on behalf of authorized AIFM for:
The marketing of AIF in their Member State by, or on behalf of, authorized AIFM
The cross-border management of AIF in the Member State by authorized AIFM
Under the AIFM Directive, authorized AIFM benefit from two passports — a “marketing passport” permitting them to market the AIF they manage in any other Member State (a host Member State), and a “management passport” permitting them to manage AIF in any host Member State. ESMA’s opinion relates to the application of the passports in Member States which have not yet transposed the AIFM Directive.
According to ESMA’s opinion, host Member State competent authorities must accept valid notifications and allow authorized AIFM to exercise their “passports” in the host Member State — both their “marketing passport” and their “management passport”.
|Transposing Member State|| |
Non-transposing Member State
Notification of marketing of EU AIF when the host Member State of the AIFM has not transposed the AIFM Directive1
|Home Member State||Host Member State||Marketing in host Member State, either by freedom to provide services or by means of a branch|| |
|Marketing in home Member State, either by freedom to provide services or by means of a branch|| |
|Management passport2||Home Member State||Host Member State||Manage an EU AIF in the host Member State, either using the freedom to provide services or by means of a branch|| |
How EY can help
EY has established a solid track record on accompanying alternative investment groups (including promoters, sponsors, advisers, general partners and managers of AIF) and service providers in their AIFM implementation projects across Europe.
We help alternative investment groups to perform a strategic review of the opportunities and challenges of the AIFM Directive, as well as the new European fund regimes.
EY supports alternative investment groups in defining their post-AIFM product ranges and organizational models, and guiding them through the business reorganization and implementation phases, including operational alignment and compliance.
In Luxembourg, EY’s AIF Club provides alternative industry practitioners with a platform to meet, exchange views and network, benefiting from EY insight into the alternative sectors and the specific challenges they face.
Further information is available on our website: www.ey.com/lu/aifm
Download the AIFMD Alert (pdf, 116kb) .
1 ESMA believes 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.
2 ESMA believes that AIFM established in a Member State 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 Member State where the Directive has not been transposed, irrespective of the provisions currently in place in such jurisdiction since the relevant provisions of the Directive are of a self-executing nature, and provided the AIFM is authorized to manage that type of AIF in accordance with Article 33(1) of the AIFMD. Any local restrictions on AIFM that are not in accordance with the AIFMD will need to be disapplied.e marketing is done using the freedom to provide services or by means of a branch.