Research shows that less than half of EU member states have transposed the Alternative Investment Fund Managers Directive (AIFMD) into national law by the July 22 transposition deadline.
The “State of Play” research from KPMG in Luxembourg provides an overview of the status of the transposition progress of each EU member state. As of Aug. 19 2013, the AIFMD has been transposed by the following countries: Austria, Croatia, Cyprus, Czech Republic, Denmark, France, Germany, Ireland, Latvia, Luxembourg, Malta, Netherlands, and Sweden. Gibraltar and Liechtenstein also transposed.
AIFMD may be perceived by industry players as costly compliance exercise, but it is also perceived as an opportunity to introduce a management and marketing passport. As more than half of the EU Member States have not transposed, concerns grew if the incentive of the management and marketing passport are still valid to reach for an early authorization.
Thomas Ertl, from KPMG’s European Centre of Excellence Investment Management Regulation, said: “Since the main opportunity that comes with the AIFMD is the marketing and management passport, it was hoped that more member states would have transposed the directive into national law within the transposition deadline, July 22.
“Therefore, without having this legal background in place for several EU Member States, the industry appreciated that ESMA published their opinion on practical arrangements for the late transposition of the AIFMD on August 1, shortly after the transposition deadline.
“It thereby quickly reassured early movers to apply for authorization by keeping the promising incentive of the management and marketing passport alive, which is important for managers wishing to operate cross-border in the EU.”
The opinion from ESMA, published eight days after the AIFMD deadline, sought to reassure early movers for authorization to enable the use of the marketing and management passport.
Under the rules, 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.
ESMA believes that, provided the AIFM is authorized to manage that type of AIF in accordance with Article 33 of the AIFMD, it should be able to manage EU AIF via the management passport irrespective of the provisions currently in place in any such jurisdiction.
Furthermore, an AIFM and competent authorities in a Member State that has transposed the Directive may have difficulties notifying the marketing of EU AIFs to relevant competent authorities if the host Member State of the AIFM has not transposed the Directive.
Addressing these marketing concerns, ESMA believes that the competent authority of the host Member State of the AIFM or home Member State of the AIF may not refuse the notification on the ground that the Directive has not yet been transposed in the host Member State.
Many EU States Have Yet to Bring AIFMD Into Law
Research shows that less than half of EU member states have transposed the Alternative Investment Fund Managers Directive (AIFMD) into national law by the July 22 transposition deadline.