ESMA’s opinion on the practical arrangements for the late transposition of the Alternative Investment Fund Managers Directive – AIFMD

ESMA – the European Securities and Markets Authority – published its opinion on arrangements for the late transposition of the AIFMD on 1st August 2013.

Prior to the implementation of the Directive in all Member States, certain arrangements are to be in place. Notification should be made of marketing of EU Alternative Investment Funds (AIFs) when the host Member State (MS) of the Alternative Investment Fund Manager (AIFM) has not transposed the Directive (Articles 31 & 32 of the Directive). ESMA is of the opinion that, if the Directive has been transposed in the home MS of the AIFM, the competent authority of the host MS of the AIFM (Article 32) or home MS 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 MS. This applies irrespective of whether the marketing is done using the freedom to provide services or by means of a branch.

In addition, ESMA believes 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. This is applicable irrespective of the provisions currently in place in the jurisdiction which has not transposed the Directive, since the relevant provisions of the Directive are of a self-executing nature, and provided the AIFM is authorised to manage that type of AIF in accordance with Article 33(1) of the AIFMD. Any local restrictions on AIFMs that are not in accordance with the AIFMD will need to be dis-applied.

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